England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE EATRF 97/1382/3

Royal Courts of Justice

The Strand

London WC2

Wednesday 17th March, 1999

B e f o r e:

LORD JUSTICE EVANS

LORD JUSTICE MUMMERY

SIR CHRISTOPHER STAUGHTON

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MOHAMMAD HUSSAIN

Appellant

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ELONEX PLC

Respondent

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(Computer Aided Transcript of the Palantype Notes of

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HG

Tel: 0171 421 4040

Official Shorthand Writers to the Court)

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MR D COOK (Instructed by Messrs Redferns, Wembley Park, Middx HA9 9AF) appeared on behalf of the Appellant

MISS R DOWNING (Instructed by Messrs Kosky Seal & Co., Sudbury Hill, Middx HA1 3RW) appeared on behalf of the Respondent

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J U D G M E N T

(As approved by the Court )

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©Crown Copyright

Wednesday 17th March, 1999

JUDGMENT

LORD JUSTICE EVANS: Lord Justice Mummery will give the first judgment.

LORD JUSTICE MUMMERY: From 24th September 1990 until 22nd June 1993, when he was dismissed for gross misconduct, Mr Mohammed Hussain, the appellant, was employed by the respondent, Elonex Plc. He was a computer engineer in the Technical Services Department. His employment was governed by a contract. The contract was signed by Mr Hussain on 25th September 1990. Clause 13 is headed "Disciplinary Procedures" and reads as follows:

"It is the Company's policy that disciplinary matters be handled fairly. Normally the procedure will be as follows:-

a. A verbal warning, which can be given for minor offences.

b. A formal warning, confirmed in writing, upon a repetition of an offence, on continued failure to reach the required standards, or a serious misdemeanour.

c. Repetition of an offence for which a written warning has already been issued, or the occurrence of gross misconduct, could result in immediate dismissal.

Employees are entitled to request the presence of a colleague at a disciplinary meeting. Where an employee feels that he/she has been unreasonably disciplined, the Grievance Procedure No. 12 should be used.

Examples of behaviour which can result in instant dismissal are:"

then there are listed a number of descriptions of behaviour including "(b) Fighting". The list finishing with this statement:

"This list is not exhaustive or exclusive."

In September 1993 Mr Hussain presented an application to the Industrial Tribunal complaining that he had been unfairly dismissed for misconduct and that he had been discriminated against on racial grounds. The Industrial Tribunal heard his complaint on 20th July and 7th November 1994. At the hearing both sides were represented by counsel. The Industrial Tribunal, as explained in their Extended Reasons sent to the parties on 16th December 1994, unanimously decided that Mr Hussain was not unlawfully discriminated against. By a majority the Industrial Tribunal decided that Mr Hussain had not been unfairly dismissed.

Mr Hussain appealed. His appeal was heard by the Employment Appeal Tribunal on 25th April 1996. Both sides were represented by different counsel. The appeal was dismissed on the ground that there was no error of law in the decision of the Industrial Tribunal. Mr Hussain then applied in person for leave to appeal, which was granted by two Lords Justices on 10th October 1997. Leave was granted on the basis that it was arguable that the procedure adopted for his dismissal was unfair. This appeal is confined to the ground that Mr Hussain did not have an opportunity of seeing statements provided by independent witnesses in relation to the incident which led to his instant dismissal.

The background facts.

The Industrial Tribunal found the following facts which are relevant to the limited point of law taken on this appeal. Mr Hussain worked in the Technical Services Department. He was unfortunate in having as a fellow employee a Mr Michael Gurden. Mr Gurden and Mr Hussain did not get on. Both complained incessantly about each others' behaviour to the supervisor, Mr Sashdev.

There were two incidents on 17th June 1993 which gave rise to the dismissal of both of them. In the morning Mr Gurden pointed a knife at Mr Hussain. Another incident occurred at about 5.30pm on the same day; on that there was a conflict of evidence between Mr Hussain and Mr Gurden. Mr Gurden said that Mr Hussain had headbutted him. Mr Hussain admitted that his head came into contact with Mr Gurden's head, but that Mr Gurden had obstructed his way and held his wrists. He had used his head to try to push Mr Gurden away. Mr Gurden complained of the incident to Mr Sashdev. He reported the incident to Mr Kelly, the Technical Services Manager. He investigated the incident and suspended both of them.

On 21st June 1993 a disciplinary hearing was held. Both men were told in advance that they could have a colleague present. Mr Gurden attended with Mr Kamal Sehmi. Mr Hussain did not arrange for anyone to accompany him. The Managing Director, Mr Wetrin, held the hearing. Statements had been taken from four witnesses prior to the hearing. The witnesses were Mr Mark Philpot, Mr Said Hamdia, Mr Dhirendra Sashdev and Mr Phillip Kelly. All statements were dated 21st June 1993. Only the statement of Mr Mark Philpot is relevant to the incident investigated at the disciplinary hearing.

The existence of these statements was not disclosed to Mr Hussain. Copies of them were not provided to him or to Mr Gurden. The statements were not read out or referred to at the hearing before Mr Wetrin. Mr Wetrin said in his witness statement (paragraph 16) that he considered:

"... on hearing the evidence, having spoken to Mr Gurden and Mr Hussain jointly and then separately that there had been a serious incident on Thursday 17th June and that I was satisfied that Mr Hussain had head-butted Mr Gurden. From reading the statements and listening to Mr Gurden and Mr Hussain at the disciplinary meeting I considered that Mr Hussain's behaviour was entirely unacceptable and that despite Mr Gurden's cheeky nature and the allegations of bullying that this incident was entirely unacceptable and could not be tolerated."

Mr Wetrin was aware of the background animosity between the two men. Mr Wetrin allowed both men to hear the other at the disciplinary hearing. Mr Wetrin heard both men individually. He concluded that Mr Hussain had headbutted Mr Gurden. Mr Wetrin dismissed Mr Hussain. He also dismissed Mr Gurden for the knife incident earlier that day.

The Industrial Tribunal came to the following conclusion in relation to the procedure at the disciplinary hearing held by Mr Wetrin. In paragraph 9(ix) of the Extended Reasons the Tribunal found this:

"Mr Wetrin held the disciplinary hearing and the notes of that meeting appear at pages 36-38 inclusive of the bundle of documents. Statements had previously been taken from witnesses and those statements are at pages 40-43 inclusive in the bundle. The statements were not copied to either men nor read out at the hearing. However the Tribunal took the view that the statements added little to the allegations which were clear namely that the Applicant had headbutted Mr Gurden. Mr Wetrin was aware of the background of complaints by both men about the other;

(x) After allowing both men to hear the other at the disciplinary hearing and after having heard both men individually Mr Wetrin came to the conclusion that the Applicant had headbutted Mr Gurden."

On the issue of unfair dismissal, the Tribunal found this:

"13. In the consideration of the issue of unfair dismissal the Tribunal finds the Applicant was dismissed by Mr Wetrin because the Applicant had headbutted Mr Gurden. Mr Wetrin came to this conclusion after having carried out a reasonable investigation and disciplinary procedure and accordingly the Applicant was dismissed for his conduct, and the Tribunal members then considered Section 57(3) of the Employment Protection (Consolidation) Act 1978."

There was a disagreement between the members of the Tribunal; the majority taking the view that a reasonable procedure had been adopted by the respondent, and that the background ill feeling and provocation was taken into account by Mr Wetrin in deciding what disciplinary sanction should follow. The Tribunal said it was not their task to say whether they would have been more lenient. Mr Wetrin came to the view, in the light of all the circumstances, and having in mind the background leading to the incident, that violence could not be tolerated and he dismissed the applicant. That was a decision within the band of responses for a reasonable employer.

The minority opinion did not express any disagreement about the reasonableness of the procedure adopted. The disagreement was on the point that, in the view of the minority member, the degree of provocation was such and the violence was so out of character for Mr Hussain that no reasonable employer in these circumstances would have dismissed him for this first offence.

The Employment Appeal Tribunal found that there was no error of law in the decision of the Industrial Tribunal on the question of procedure. The judgment of the Tribunal was given by Butterfield J. The Tribunal heard submissions complaining of the fact that statements from the witnesses had been obtained but not copied to Mr Hussain. It was contended that that was a fatal procedural flaw. The conclusion of the Employment Appeal Tribunal was that the material entitled the Industrial Tribunal to conclude as they did. There was a reasonable investigation and a properly conducted disciplinary procedure. There was therefore no error of law disclosed in the Extended Reasons. The Tribunal was entitled to find as it did as to the reasonableness of the procedure.

On this appeal Mr Cook, for Mr Hussain, said that it was an important failure in the procedure that statements had been obtained, relied upon but not revealed to Mr Hussain. Fairness required that he should have been informed of the existence of the statements. As a result of the failure to inform him, he had had no opportunity to read them or to decide whether or not to cross-examine, in particular Mr Philpot. He had been deprived of the opportunity to address Mr Wetrin on the contents of the statements or to make submissions on them. That failure was important because it was a matter of one person's word against another, that of Mr Hussain against the word of Mr Gurden. Independent testimony was important. It was an issue of fact. That issue was whether Mr Hussain had behaved aggressively or not towards Mr Gurden in bringing his head into contact with Mr Gurden's.

On this point Mr Cook referred to the notes of the hearing made by Mr Wetrin. He referred to the passages of evidence given by Mr Hussain. Mr Hussain admitted that he had touched Mr Gurden with his head and said that he had pushed away to free himself. Mr Hussain said there had been no fighting activity. Mr Gurden was stopping him from passing. Mr Gurden said:

"I have found my way. You will be sacked. You have headbutted me."

After that Mr Hussain carried on with his work. He repeated his contention that he did not fight and Mr Gurden did not fight. He also referred to the evidence which was given by Mr Gurden to the effect that there had been a headbutt.

In this context Mr Cook referred to the statement obtained from Mr Mark Philpot on 19th July. In his statement Mr Gurden referred to an incident which he saw occur between the two men at about 5.45pm. He said:

"They were speaking [to each other] and something was said, but I do not know who said what to who. Hussain appeared to headbut Michael Gurden. He appeared to headbut him about his forehead. I did not see actual contact and if there was it could not have been very hard because Michael did not move back immediately. He moved back a second or two later. Michael had a blue flask in his hand and he hit Hussain with it hard on the arm. Hussain staggered back. I heard Michael say ´You headbutted me. You are going to get the sack.' and he went straight to Sash. Hussain came back to his bench."

He added that he thought there must have been provocation:

"I thought it would become a serious fight but both stopped."

Mr Cook submitted that, in the light of Mr Hussain's denial that they had been fighting or that he had started the fight deliberately or behaved aggressively, the statement of Mr Philpot was important. It appeared from the part of the witness statement of Mr Wetrin already quoted, that Mr Wetrin had regard to that statement in coming to his decision.

Mr Cook accepted that Mr Philpot's account broadly supported Mr Hussain's account of the incident. He submitted that his case might have been strengthened by asking further questions of Mr Philpot about what had happened. Mr Cook submitted that it was particularly important in this case that the evidence should have been disclosed in the witness statements because there was no appellate procedure provided for in the contract. There was in those circumstances a higher burden of a fair procedure.

In support of his submission on those factual points, Mr Cook referred to two authorities. He cited the decision of the Employment Appeal Tribunal given by Wood J in Louies v Coventry Hood and Seating Co [1990] ICR 54. That was a case in which the Employment Appeal Tribunal allowing an appeal from the Industrial Tribunal, which held an employer's dismissal procedure to be prima facie unfair if the employee was not permitted to know the contents of statements on which the employer would rely in taking a decision to dismiss or confirm a previous dismissal.

The relevant part of Wood J's judgment is at page 59E, where he said this:

"It does seem to me that it must be a very rare case indeed for the procedures to be fair where statements which have been given in writing by witnesses and upon which in essence the employer is going to rely almost entirely - and that is this case - that an employee should not have a sight of them or that he should not be told very clearly exactly what is in them or possibly have them read to him. One understands that there may be delicate situations. We have dealt with the case of informers in Linfood Cash & Carry v Thomson [1989] ICR 518. It may be that one does not want to exacerbate the relationship between employees or possibly groups of employees at work. However, where the essence of the case, the main substance of the ,case is contained in two statements which this employee asks to see and which he is refused without reason and upon which substantial reliance is placed, then prima facie to me it seems to be unfair. It may be the reaction of a lawyer; I trust it is the reaction of anyone."

Mr Cook also cited an earlier decision of Slynn J on behalf of the Employment Appeal Tribunal in Bentley Engineering Co Ltd v Mistry [1979] ICR 47. The decision of the Industrial Tribunal was upheld in that case, to the effect that natural justice required that a man should have a chance to state his own case and to know sufficiently what was being said against him, so that he could put forward his own case properly. The relevant passage in the judgment of the Appeal Tribunal at page 51, where Slynn J said this:

"We deal with this appeal on the facts of this case. We do not say that in every case any particular form of procedure has to be followed. We accept Miss Slade's submission that there may be cases in which cross-examination is wholly unnecessary, and that even other methods of achieving natural justice may not be wholly appropriate or required by a situation where an employer is considering an incident which has happened in the course of everyday work. On the other hand it is clear that in a matter of this kind, natural justice does require not merely that a man shall have a chance to state his own case in detail; he must know in one way or another sufficiently what is being said against him. If he does not know sufficiently what is being said against him, he cannot properly put forward his own case. It may be, according to the facts, that what is said against him can be communicated to him in writing, or it may be that it is sufficient if he hears what the other protagonist is saying, or it may be that, in an appropriate case, for matters which have been said by others to be put orally in sufficient detail is an adequate satisfaction of the requirements of natural justice. As Bristow J said, it is all a question of degree. In the present case, the industrial tribunal have found, as is indeed unchallenged, that the employee did not hear Mr Singh; [Mr Singh was the other protagonist in the matter] the employee did not have the written statements of the other witnesses, nor any written statement of Mr Singh; he did not have the chance to cross-examine. It was clear, as Miss Slade has pointed out to us, from the notes of evidence in the course of the hearing, that certain matters were put to the employee."

Slynn J went on later to say:

"The real issue here is who or what had provoked the fight, and we consider that the industrial tribunal are really saying that because the employee did not have these various statements, and did not have the opportunity of listening to Mr Singh or of asking him questions, he really did not have an opportunity of knowing in sufficient detail what was being said against him on the issue which really mattered."

In brief, Mr Cook criticised the decision of the Industrial Tribunal in that it had failed to give sufficient weight, in considering the fairness of the procedure, to the fact that there was an undisclosed witness statement of Mr Mark Philpot which related, as a matter of independent evidence, to the conflict of fact between Mr Gurden and Mr Hussain on the question of the headbutting incident.

I have reached the conclusion that this appeal should be dismissed. Mr Cook has failed to demonstrate on Mr Hussain's behalf that there was any error of law in the decision of the Industrial Tribunal on the fairness and reasonableness of the procedure adopted by the employers in this case. The question in a case of dismissal for misconduct such as this is whether there has been a fair and reasonable investigation of the alleged misconduct before a decision is made to dismiss or not to dismiss. In this case there was no contractual requirement that a particular procedure should be followed, other than it should be fair. There is no universal requirement of natural justice or general principle of law that an employee must be shown in all cases copies of witness statements obtained by an employer about the employee's conduct. It is a matter of what is fair and reasonable in each case.

What emerges from the two authorities cited by Mr Cook is not that there is a failure of natural justice where witness statements are obtained but not disclosed, but there is a failure of natural justice if the essence of the case on the employee's conduct is contained in statements which have not been disclosed to him, and where he has not otherwise been informed at the hearing, or orally or in other manner, of the nature of the case against him. I would emphasise the passage in Wood J's judgment in Louies v Coventry Hood and Seating Co where he referred to the substance of the case being contained in statements which the employee had asked to see and which had not been shown to him, with no good reason being shown, and on which substantial reliance had been placed in reaching the decision to dismiss him. That is not the case here. The Industrial Tribunal was entitled to reach the conclusion that the investigation was fair and reasonable in all the circumstances. Mr Hussain knew that he was being accused of having headbutted Mr Gurden. He was given a full opportunity to respond to that allegation at the hearing in the disciplinary tribunal. He was present and gave his version, which I have quoted from the notes. Mr Gurden was present and gave his version. There was a fair and reasonable hearing. It also appears that, although four statements were obtained and none of them was disclosed, only one was possibly relevant to the allegations against Mr Hussain. That was the statement of Mr Mark Philpot. Although Mr Wetrin said he had read that statement, it is clear, as the Industrial Tribunal said, that it had not been relied on in the investigation in any way that could be detrimental to the position of Mr Hussain. At best the statement of Mr Philpot was favourable to Mr Hussain; at worst, it was neutral.

I would repeat that there are no hard and fast rigid rules as to the procedures to be adopted in these cases, where there is no agreed code. What matters is fairness and reasonableness. Mr Hussain was treated fairly and reasonably because he was told of the accusations against him and was given a full opportunity to respond to them.

For all those reasons I would find there was no error of law which would entitle this court to interfere with the decision of the Industrial Tribunal that the decision was fair.

SIR CHRISTOPHER STAUGHTON: In the case of Government of Ceylon v Chandris [1963] 1 Lloyds Rep 214 at page 225, Megaw J said this:

"It is, I apprehend, a basic principle in arbitrations as much as litigation in the Courts (other, of course, than ex parte proceedings), that no one with judicial responsibility may receive evidence, documentary or otherwise, from one party without the other party knowing that the evidence is being tendered and being offered an opportunity to consider it, object to it, or make submissions on it. No custom or practice may override that basic principle."

I should comment in parenthesis that ex parte means proceedings where the other side is not notified.

People in this country are not convicted on the basis of a lettre de cachet supported by a witness who wraps a cloak over his face while conducting an identification of the defendant. But we do not necessarily incorporate the whole paraphernalia of legal procedure into the requirements of disciplinary proceedings in an employment context. That much is clear. What is required is that the procedure must be fair. What fairness requires may vary from case to case. Having recently myself conducted a disciplinary inquiry into the conduct of an employee, I can well understand why that is the case. It is difficult to imagine a case where fairness does not require that the employee should know the charge which he has to face. What more is required to achieve fairness will vary from case to case.

For the reasons given by Lord Justice Mummery, I conclude that there was no unfairness in the procedure which led to Mr Hussain's dismissal and I too would dismiss this appeal.

LORD JUSTICE EVANS: I too agree with the judgment of Lord Justice Mummery and that of my Lord, Sir Christopher Staughton, and the appeal must be dismissed.

ORDER: Appeal dismissed with costs.

(Order not part of approved judgment)

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