When the words of the statute are looked at in that focused way, Mr Oudkerk submits, only one construction is possible; and the "step 1 letter" (the email in this case), which made no reference to possible dismissal, was sufficient. He acknowledges that, in Alexander v Brigden Enterprises [2006] ICR 1277 , the Employment Appeal Tribunal, presided over by Elias J, came to a different conclusion, as did the EAT, presided over by His Honour Judge Clark, in Home Serve Emergency Services Ltd v Dixon (unreported EAT/0127/07/CEA); but he submits that the views expressed in Alexander were obiter and set in the context of the absence of any or any full argument and that the views expressed in Home Serve can be similarly regarded. In any event, he submits, we are not bound by either authority and should be persuaded to come to a different conclusion.
On this issue Mr White relies on the two authorities to which we have just referred, and on the importance of the employee's knowing, if a step 1 letter is to be of value, what it is he is or may be facing, so that he can consider the allegations being made against him in the light of the possible sanction which may follow.
In Alexander the Employment Tribunal considered, as the first issue before them, whether there had been a sufficient Step 1 letter, in a case in which the Claimants were dismissed for redundancy. The Step 1 letter relied upon informed the Claimants that their positions were at risk of redundancy and, therefore, it referred to the risk of dismissal. In a judgment, which was plainly intended to lay down principles generally as to the nature of the relevant requirements of the statutory procedures, the EAT, at paragraphs 33 to 37, described the purposes of those procedures and said that they represented a basic statutory minimum standard. At paragraph 34 the Employment Appeal Tribunal said:
and at paragraph 38 they said:
The conclusions set out in paragraph 38 have, as His Honour Judge McMullen QC said in his written comments when this appeal was considered at the sift stage of the EAT's procedures, been consistently followed by Tribunals.
They were followed, too, in Home Serve, in which the EAT were considering the employer's appeal against the Tribunal's decision that the employee had been unfairly dismissed by reason of the absence in the Step 1 letter of any reference to dismissal, as a possible outcome of a disciplinary meeting to which that letter invited him. At paragraph 12 the EAT said:
Thus, the principle expressed in Alexander was applied to a case where the letter was defective in that it did not refer to dismissal as a possible outcome, the identical shortcoming to that identified by the Tribunal in the first case.
We accept that in Alexander what the EAT said in paragraph 38 of their judgement as to a requirement that the step 1 letter should tell the employee that he is at risk of dismissal, in addition to telling him why was strictly obiter dicta; for the step 1 letter in that case did inform the employees of that risk; and the principle enunciated in the fourth sentence of paragraph 38, i.e. that the employee must be told that "he is at risk of dismissal and why" would appear to have been based on the argument of counsel for the employers, with which it is unlikely that counsel for the employee would have disagreed (if asked). However, we do not accept Mr Oudkerk's elegant deconstruction of that paragraph, which was intended to show that the sentence to which we have just referred was an anomaly within a paragraph which otherwise stated that the only requirement was to tell the employee what were the conduct or characteristic or circumstances which the employer had in mind. In our judgment, the paragraph must be read as a whole. The obligation to tell the employee that he is at risk of dismissal did not need to be set out with any greater degree of elaboration. On the other hand, the obligation to tell the employee why he was at risk of dismissal did need to be set out with a greater degree of elaboration because in practice there can be many different answers to the question: " how far do we have to go in telling him why?" In that paragraph we have no doubt that the EAT was seeking to make clear in general terms, how far, in a step 1 letter, in that respect the employers were required to go. We do not doubt that the President and his colleagues intended to state the two-fold requirement which the paragraph sets out and to do so by way of guidance to Employment Tribunals and to employers and to employees.
Whether paragraph 12 in Home Serve is technically obiter dicta , as Mr Oudkerk suggested, we rather doubt. It is true that the EAT went on to conclude, on the facts, that the employee in that case did know that the employers were contemplating dismissal; but had paragraph 12 been decided in the opposite direction what was said most certainly would have been ratio; and it is certainly arguable that paragraphs 12 to 14 of the EAT's judgement contain two ratios as to step 1. But we do not wish to get embroiled in technicalities as to what is or not is obiter dicta ; for we are not bound by either authority; and we would not hesitate, if we were persuaded that Mr Oudkerk's submissions were correct, to disagree with what our colleagues have set out in those two authorities:
However we are not persuaded that the EAT overstated the requirements of a step 1 letter in either decision. We accept that paragraph 1(1) of the statutory procedure could be construed as requiring only the limited obligation on which Mr Oudkerk relies, but in our judgment the relevant words can and should be construed consistently with the view taken by the EAT in Alexander and Home Serve, to which we have referred, namely, that the words which appear after the comma, despite the comma, are descriptive of the obligation contained within the procedure and not merely descriptive of the words which precede the comma. That, in our judgment, is consistent (and the alternative is not consistent) with the aims and purposes of the statutory provisions as described by the EAT in paragraph 34 of Alexander , in our view correctly. Unless the employee is enabled to understand from the step 1 letter that he is at risk of dismissal, in our judgment the purpose of the Step 1 letter in a dismissal case cannot be properly achieved. The employee is plainly entitled to have some idea what type of sanction is in the mind of the employer or, at least, in a dismissal case, that dismissal is in the mind of the employer, so that he knows the potential extent of what it is that he may be facing when, armed with the information given to him by the Step 1 letter, he goes to the Step 2 meeting.
In what we have said we are not, in our judgment, departing in any sense from the principle expressed in YMCA Training, in which (as Mr Oudkerk realistically accepts) Alexander was quoted and its correctness was not queried. The issues in that case were different issues; but the principle is of course applicable, that we must concentrate on the words and purposes of the words of the statutory procedure. That we have done. We have not gone beyond them. Accordingly, Mr Oudkerk's first point fails. Employment Tribunals should follow what the EAT said in Alexander .
His second point is that on the facts of this case (just as on the facts of Home Serve ) the employee, Mr Brezan, had been given the relevant information, i.e. knew that dismissal was contemplated. We accept that on the facts of a particular case it is open to a tribunal to consider that the Step 1 letter, and information provided with it, can be regarded, in the individual circumstances of the case before them, as sufficient to communicate the risk to the employee of dismissal, albeit the letter itself does not expressly say that. Home Serve is a clear example of that type of case. Here Mr Oudkerk submits that sending the disciplinary procedure with the email, which process bore within it the contents which we have described, could have only have meant to Mr Brezan that he was at risk of dismissal and that that was borne out at the following disciplinary meeting when Mr Brezan said that he understood very clearly why he was at that meeting i.e. the meeting of 9 November.
We do not accept that submission, attractively as it was put. The email said only that the meeting was to discuss Mr Brezan's mileage and expense claims which had been discussed earlier that day. It made no reference to misconduct, still less gross misconduct. As we have already said, it did not direct Mr Brezan's attention to any specific part of the lengthy disciplinary document. It was possible from the letter for anyone to think that the employers were thinking, or might be thinking, not in terms of dismissal at all but in terms of relying on unprofessional conduct or failing to record matters which should be recorded or on other matters falling within the definition of "misconduct" as opposed to "gross misconduct"; the whole series of meetings (according to the Tribunal's findings) took place within the context of what appeared to the Tribunal to be an ongoing discussion about the mileage claims.
At paragraph 9.3 of the judgement the Tribunal expressly found as fact that it was not made clear to Mr Brezan that the purpose of the exercise being carried on was to enable him to save his employment, rather than to facilitate his promotion. That finding of the Tribunal appears to us to make Mr Oudkerk's second point unsustainable; but, even without that finding, we would not have come to the conclusion, on the facts as found and on the documents that we have seen, that this was a case analogous to Home Serve or a case in which it could be said that the employee knew from the step 1 letter and what accompanied it, before he went into the meeting of the 9th, November, that he was at risk of dismissal.
It is true that the note of the meeting of 9 th November, which the Tribunal found to be accurate but incomplete, records Mr Brezan as saying that he understood very clearly why he was there; but that is ambiguous. It does not mean necessarily that he understood that he was there to try and keep his job, as opposed to being there to explain what had happened in relation to his mileage claims and why he had done nothing wrong or nothing very wrong. We are not persuaded by that note to regard Mr Oudkerk's point as being any stronger than it would be without it.
For those reasons we are not persuaded by Mr Oudkerk's second point either; and thus we come to the conclusion that the Tribunal's decision that there had been an automatically unfair dismissal was correct and that, in that respect, this appeal must be dismissed.