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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Kingarth
Lady Paton
Lord Clarke
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[2008] CSIH 36
XA163/07
OPINION OF THE COURT
delivered by LORD KINGARTH
in
APPEAL
under Section 37 of Employment
Tribunals Act 1996
by
STEPHEN BOYD
Appellant;
against
RENFREWSHIRE COUNCIL
Respondents:
_______
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Act: Fairley; Lindsays,
WS
Alt: Cunningham; Simpson &
Marwick
11 June 2008
[1] The appellant
was employed as a refuse collection driver by the respondents between
August 2001 and 22 April 2005, on which date he was
dismissed. On 5 July
2006 an
Employment Tribunal sitting at Glasgow ("the Tribunal") decided that he had
been unfairly dismissed (and awarded compensation). The respondents appealed, and by decision
dated 3 July 2007 the Employment Appeal Tribunal ("the
Appeal Tribunal"), being satisfied that the Tribunal had erred in law in
concluding that the appellant had been unfairly dismissed, allowed the appeal,
quashed the decision of the Tribunal and substituted a finding that the
appellant had been fairly dismissed. The
appellant has appealed to this court under Section 37(1) of the Employment
Tribunals Act 1996, with leave of the Appeal Tribunal.
[2] In reaching
their determination, the Tribunal made a number of findings in fact, the full
details of which we need not rehearse. We
summarise the essential findings below.
[3] As from 4 April
2005, the
respondents introduced new collection routes which were required in connection
with a new recycling collection programme.
The result was that refuse collectors were liable to have to work longer
hours than previously; the "task and
finish" basis on which they had worked formerly meant they were able to finish
about two hours earlier each day than after the introduction of the new
routes. Employees were resistant to
these changes and determined to "work to rule" from 4 April
2005, a
decision which was made in the absence of the appellant, who was on leave. He returned to work on 4 April
2005.
[4] On 5 April
2005, the
appellant was working as a refuse collection driver. His vehicle was seen driving towards the
Linwood roundabout by supervisors at about 2pm, as was another refuse collection
vehicle. Both had
drivers, one of which was the appellant, but neither of them had a crew. The supervisors found the four crew members
drinking in a local public house. They
then went to look for the appellant and the other refuse vehicle driver. They found them at a nearby industrial estate
at about 2.45pm. Both drivers said
they had dropped off their two man crews at about 2pm and that they had then stopped for a
snack. This was outside the normal
authorised break time. The men were told
to go and tip their loads, which they did, and report to the depot, which they
also did. They were then sent home. Their crews were not considered fit to carry
on work that day. Disruption to the
respondents' rubbish collections service resulted.
[5] The appellant
was not suspended from duty. He was
asked to attend, and did attend, an investigatory meeting on 7 April
2005. He was advised and supported throughout the
investigatory, and the subsequent disciplinary, proceedings by a Union
representative, Mr Crawford of the GMB.
He was advised and supported throughout the subsequent appeal process by
another Union representative, Mr Farraly.
At the investigatory meeting, the appellant said that he had decided to
go for a snack before tipping his load and returning to the depot. He said he was unsure what he was going to do
in the light of his crew having left the vehicle.
[6] In fact what
had happened, as the appellant told Mr Crawford, was this. On the day in question, without any prior
warning to him, his two crew members had jumped from the vehicle. He asked what they were doing and was told
that it was no business of his. He was
warned that under no circumstances was he to go back to the yard. One of the crew members pointed his finger at
the appellant in an unsettling manner and swore at him. He warned him not to say what had
happened. The appellant was unsure what
to do, and as he drove off he saw Mr Leonard, who flashed his lights at
him. He too had no crew in his vehicle,
and they made contact by mobile telephone.
Mr Leonard, who was a considerably more experienced driver,
explained that the same thing had happened to him and suggested that they take
their vehicles to a nearby industrial estate to discuss what they should
do. Later that evening the appellant
received a telephone call to his home at about 12 midnight from one of the crew members who
plainly felt that the appellant had told the supervisors where they were to be
found, i.e. the pub. This person was
under the influence of alcohol and aggressive.
The appellant's car was deliberately and severely scratched very shortly
thereafter. He had on two previous
occasions been ostracised for insisting on legally required breaks, and
refusing to park illegally. Indeed, he
had reported this to one of the supervisors and been provided with a copy of
the respondents' harassment policy.
[7] Prior to the
investigatory meeting the appellant was told by Mr Crawford that he would
"broker a deal" with the respondents so that he would receive no more than a
warning. On that basis, he was to say as
little as possible so that he did not incriminate the crew. Thus assured, the appellant was persuaded not
to say a great deal in his own defence.
[8] The Tribunal
found the appellant to be a sincere and truthful witness, and accepted his
account of these events.
[9] The appellant
was given notice to attend a disciplinary hearing by letter, dated 14 April
2005, from Ms MacDougall,
Head of Commercial Services. In that
letter she wrote that the "reasons for the Hearing" were:
"(1) in breach of the Council's Code of
Conduct for Employees
(2) unauthorised
break
(3) inappropriate
behaviour
(4) incompletion of
daily task"
The letter did not state what possible sanction the appellant
might face. Ms MacDougall had
thought about whether the letter should warn the appellant that he could face
dismissal but decided not to do so lest it appear that she had prejudged
matters. The respondents' Code of
Conduct was not enclosed and the appellant was not in possession of a
copy. The Tribunal found, in any event,
that no parts of it were of particular relevance. A copy of the respondents' disciplinary
procedures was enclosed. At
paragraph 7.4.1 of that document, reference is made to possible summary
dismissal on the grounds of gross misconduct which is said to be "normally
restricted to very serious offences, e.g. physical violence, theft, fraud,
gross negligence of duties". In these
circumstances the Tribunal found that the appellant was not aware that the
respondents might contemplate dismissal if the complaints were upheld.
[10] A disciplinary
hearing took place on 22 April 2005 before Ms MacDougall. The claimant did not, again, tell the "full
story". One reason was the continuing
advice of his representative, Mr Crawford.
The Tribunal also found that,
"another
significant factor however is this. The
claimant was not on notice from his employer that he might be dismissed and
accordingly did not put those matters forward for that reason either. He did not consider it worth risking the
intimidation and ostracism in the workplace ... by telling the truth and
incriminating his colleagues who had threatened him".
[11] The
appellant's position at the hearing was that he thought that he could take a
break at the relevant time, and that he had expected his crew to make their own
way back to the depot.
[12] Ms MacDougall
was the decision-maker in this process.
She adjourned the hearing to reach her decision and then reconvened it
to announce that decision, which was of summary dismissal on the grounds of
gross misconduct. She stated that she was
of the clear opinion that the appellant's actions on 5 April
2005 were
deliberate and wilful, with significant impact on service delivery. She did not feel that the incident was
premeditated, but was of the opinion that he (seeing and using an opportunity) was
aware of the implications of not operating the new procedures, (albeit he was
confused as to how to "work to rule") and that his decision to drop off his
crew and then take a lengthy unauthorised break was a deliberate and wilful act
to cause, and which resulted in, significant service disruption.
[13] On 27 April
2005 a formal
letter of dismissal was issued to the appellant which
stated inter alia
"The reason for your summary
dismissal on the grounds of gross misconduct is that you were found to be in
breach of the Council's Code of Conduct for Employees by deliberately and
wilfully on 5 April 2005:
·
taking
an unauthorised break;
·
not
completing your daily task;
which resulted in service disruption
within refuse collection activities during the period of service changes, of
which you were fully aware".
[14] The Tribunal
found that the reason for dismissal differed to a significant extent from the
complaints which the appellant expected to face as set out in the letter
convening the disciplinary hearing. In
the letter convening the disciplinary hearing, there was no mention of an
allegation that the appellant had deliberately and wilfully carried out the
acts in question with a view to causing service disruption. The letter did not state that the appellant
had identified and seized an opportunity to cause disruption. No allegation was contained in the letter
that he had decided to drop off his crew.
The Tribunal thus found that the appellant was not aware that these were
matters which Ms MacDougall would consider and take into account. They found that had the letter convening the
disciplinary hearing contained the matters referred to the appellant would have
recognised the necessity of putting forward what had actually taken place.
[15] The appellant
was utterly shocked by the outcome. He
had been expecting, at worst, a final written warning. He had had no notice from his employer that
he might face dismissal, and the charge for which he was dismissed was
significantly more serious than that put to him.
[16] The appellant
appealed, and an appeal was heard on 9 June 2005 before a panel consisting of certain
elected members of the respondents. The
convenor was Councillor Murrin. The
panel allowed the appellant to put forward the explanation of what had happened
which he had withheld from both the investigatory meeting and the disciplinary
hearing. On hearing this explanation,
the panel instructed Ms MacDougall to instruct an officer to investigate and
Mr Elder, Assistant Amenity Services Manager was charged by Ms MacDougall
with this task. For this purpose he met
the appellant and his partner, Ms McCrea.
In the report which he prepared he reported a full account of what had
happened, as told to him by the appellant and Ms McCrea, who had been able
to confirm aspects of the appellant's position, including confirmation of a
threatening telephone call. He referred
to the appellant being told by his Union representative to keep his answers to
a minimum as he was going to strike a deal.
As it was originally drafted, Mr Elder stated in the report that he
believed that the claimant was genuine in his account and felt that he was
being threatened and harassed. He stated,
however, that he could not substantiate this further, in that the other crew
members had been dismissed and were unlikely to co-operate. Mr Crawford, the Union representative
was off on leave, sick. Mr Elder,
however, was directed to take out these latter comments by a senior personnel
officer who was also involved in clerking the appeal hearing, being told that
he should stick to the facts and not express any opinions.
[17] The appeal
panel reconvened on 29 June 2005.
The appellant was not invited to make any further representations. The report was read through by those
present. Ms MacDougall indicated
that it would not have made any difference to her decision. She could not accept the appellant's account absent
corroboration. The panel, apparently
strongly influenced by her position, considering that there must have been
collusion and that the action was pre-meditated, dismissed the appeal.
[18] There was no
further examination by the panel of the processes followed at the disciplinary
stage. The Tribunal found this to be
significant because Councillor Murrin was influenced in his assessment of
the new evidence by his own view that he would not himself have kept his
answers to a minimum if he knew that he faced dismissal. He was not, however, aware that the appellant
did not know that he faced dismissal when he appeared at the disciplinary hearing
or that the reasons for dismissal differed from the complaints set out in the
letter convening that hearing. It was
Councillor Murrin's position also that he would have been influenced by
the view of Mr Elder, an experienced and highly regarded officer of the
authority, as to the appellant's credibility.
He, and the panel, might have considered a lesser sanction in the
circumstances if they had known of Mr Elder's view.
[19] The Tribunal
further concluded that the appeal panel was not impartial, in that the members
were significantly influenced by Ms MacDougall's views.
[20] In
paragraphs 55-61 of their determination, the Tribunal recorded the legal
framework within which they required to make their decision. They recorded in particular that it was for
the employer to show the reason for dismissal (the reason here founded upon
being conduct) and that it was for the Tribunal then to determine whether in
the circumstances the employer acted reasonably or unreasonably in treating it
as a sufficient reason for dismissing the employee. This was to be determined in accordance with
the equity and substantial merits of the case.
They reminded themselves of a number of well known and established
authorities including in particular British
Home Stores Ltd v Burchell 1978
I.R.L.R. 379 and Iceland Frozen
Foods v Jones 1982
I.R.L.R. 439. It was, they
recorded, for them to determine what the employer believed and whether that was
a reasonable belief following a reasonable investigation. They required to determine
that the dismissal was within the range of responses open to a reasonable
employer. It was not for them to
substitute their own view for that of the employer. It was for the employer to follow a fair
procedure. The basic rules of natural
justice applied. The employee required
to know the case he was to face and have an opportunity to put his case. He should normally be allowed a right of
appeal.
[21] On the basis
of their findings in fact, the Tribunal determined, in the first place, that the
original decision to dismiss was not fair, the respondents not having acted
reasonably in treating the appellant's conduct as a sufficient reason for
dismissal. They expressed their
reasoning as follows:
"65. At
the disciplinary stage the claimant was not notified that he might face
dismissal, and accordingly did not put forward all of the facts and matters
which were relevant. This was because he
was prepared to accept a warning rather than risk further harassment from
co-workers. Had he known that he faced
dismissal he would have told the whole story.
66. Further,
the reason for dismissal was significantly more serious than the charges as
framed in the letter convening the disciplinary hearing, there being no
suggestion until he was dismissed that he had deliberately taken the actions
alleged with a view to disrupting the service in the context of a work to
rule. It was unjust and inequitable to
dismiss this employee on grounds which were significantly more serious than the
complaint he expected to face at the disciplinary hearing.
67. Matters
explored in the forum of the disciplinary hearing are properly to be regarded
as part of the overall investigation.
68. We
find that the dismissing officer did not have a reasonable belief following a
reasonable investigation in these circumstances. Nor was dismissal within the range of
responses open to a reasonable employer in respect of the complaint as framed
against the claimant."
[22] The Tribunal
further determined that the defects at the stage of original dismissal were not
cured on appeal; rather, they determined, the
unreasonableness of the respondents was compounded. Their conclusions were expressed as follows:
"70. The
respondents had a key observation removed from Mr Elder's report, which
meant that the panel did not have available to it the views of the officer
charged with investigating the complaints as to the claimant's credibility
which might well have made a difference to the outcome. Further, Councillor Murrin's view and
that of his colleagues was influenced by the fact that an employee would be
expected to put these matters forward if he knew that he faced dismissal at the
disciplinary Hearing. Councillor Murrin
and his colleagues were not aware that the claimant did not know that. Finally, they were unduly influenced by the
views of the dismissing officer and did not act impartially."
[23] Before us,
counsel for the appellant submitted that the proper approach of this court was
to be found in certain well known passages in Melon v Hector Powe Ltd 1981
S.C. (H.L). 1 (at pp 6 and 7) and Vento v Chief Constable of West Yorkshire Police [2003]
I.C.R. 318 (at paras. 25 and 31). As to the determination of the Tribunal, it
could not be said - given the legal framework which they had correctly set
out - that they had at any stage misdirected themselves. Reference was made, in addition to the cases
referred to by the Tribunal, to Hollister
v National Farmers Union [1979]
I.C.R. 542, Jones v Mid Glamorgan CC [1997]
I.C.R. 815 and Gilham v Kent County Council [1985] 1 I.C.R. 233. It could not be said that it was not
reasonably open to the Tribunal to find that the reason for dismissal was
significantly more serious than the "charges" as framed in the letter convening
the disciplinary hearing, or that the appellant was not aware that he faced the
prospect of dismissal. The critical
finding was the reason for dismissal expressed by Ms MacDougall at the end
of the disciplinary hearing. The letter
of dismissal, construed in the light of that finding, was consistent with
that. The letter requiring the appellant
to attend the disciplinary hearing did not suggest that the appellant had
deliberately and wilfully carried out the acts in question with a view to
causing service disruption. There was no
indication in the letter that the conduct would be treated as gross
misconduct. The background was (and this
was not disputed by counsel for the respondents) that the appellant had
hitherto had a good disciplinary record and had not before received any
warnings. The fact that he was
represented did not mean that he must have known that he faced possible
dismissal, not least in circumstances where Mr Crawford was not led in
evidence as a witness. The contrary
opinion of the Appeal Tribunal in relation to these matters could not be
supported.
[24] Against that
background, it could not be said that the determination that the decision to
dismiss was unfair was not one reasonably open to the Tribunal. In essence, the Tribunal had found inter alia that the respondents' procedures
could be said to have been unreasonable; that, in effect, they had not asked
the right questions. The apparently
contrary view of the Appeal Tribunal could be said to have been based on a
misapprehension as to the nature of the conduct which led, in the eyes of the
respondents, to dismissal. The Tribunal could
also be said to have found that the respondents failed to follow the principles
of natural justice. This required the
detail, or at least the gravity, of the charges to be spelled out. Reference was made to Strouthos v London
Underground Ltd [2004] I.R.L.R. 636, and
Alexander v Brigden Enterprises Ltd [2006] I.C.R. 1277.
[25] Further, it
could not be said that it was not reasonably open to the Tribunal to find that
the defects were not cured at appeal stage - in particular given their
finding that the convenor, and by inference other members of the panel, were
not aware that the appellant did not know that he faced dismissal when he
appeared at the disciplinary hearing or that the reasons for dismissal differed
from the complaints set out in the letter convening that hearing. It was reasonably open to the Tribunal in the
circumstances to find the deletion from Mr Elder's report of his views to
have been unreasonable. The contrary opinion
of the Appeal Tribunal could not be supported.
Although the Tribunal's finding that the panel was impartial was less
easy to justify, it could be said to relate to a perceived difference of
approach relative to the views of Mr Elder on the one hand and of Ms MacDougall
on the other. In any event their
reasoning in this matter could not be said to vitiate the decision as a whole.
[26] Counsel for
the respondents submitted that the appeal should be refused, essentially for
the reasons given by the Appeal Tribunal in paragraphs 39-45 of their
decision. The Tribunal's finding that
the appellant did not know that he faced potential dismissal could not be
supported. It would have been obvious
that taking an unauthorised break and not completing tasks could be regarded as
serious. It would have been obvious that
this could cause disruption. This was
made plain at the hearing, as was apparent from the minutes (although it was
accepted that in certain respects it could be said that there were "mixed
messages"). Further the appellant had had
representation. The disciplinary
procedures referred to potential dismissal for gross misconduct. It was not ordinarily necessary to spell out
potential consequences in a letter calling a disciplinary hearing. It was further not reasonably open to the
Tribunal to find that the reasons for dismissal were significantly more serious
than the charges as framed in the letter convening the disciplinary hearing. On a reasonable construction the letter of
dismissal did not refer to a deliberate intent to cause disruption. It was not reasonably open in any event to
the Tribunal to find that if it had, the appellant would have recognised the
necessity of explaining what had in reality taken place. Further, the Tribunal's determination in
relation to the appeal process could not be supported. They continued to approach that matter on the
erroneous basis that the appellant had not been aware that he was facing
dismissal or of the full nature of the charges.
It could not be said the decision to delete the relevant part of
Mr Elder's report was unreasonable.
Although the Tribunal found that the appeal panel were heavily
influenced by the views of Ms MacDougall, it did not follow that they
could be said to have been impartial. The
decision in that respect could not be supported.
[27] Parties before
us were agreed that, in considering the matters raised by this appeal, the
court requires to approach its task bearing in mind two important
considerations. The first is that since
the court is exercising a second appellate jurisdiction in respect of decisions
of the Employment Tribunal, the focus primarily requires to
be on the soundness of the decision of the Tribunal (see e.g. Vento v Chief Constable of West Yorkshire Police, in particular
Lord Justice Mummery at paras. 25-31). The second, and most important consideration,
is that, as expressed clearly by Lord Fraser of Tullybelton in Melon v Hector Powe Ltd at pages 6 and 7,
"It is common ground that the appeal
from the industrial tribunal to the Employment Appeal Tribunal and thence to
the courts is open only on a question of law.
The appellate tribunals are therefore only entitled to interfere with
the decision of the industrial tribunal if the appellants can succeed in
showing, as they seek to do, that it has either misdirected itself in law or
reached a decision which no reasonable tribunal, directing itself properly on
the law, could have reached (or that it has gone fundamentally wrong in certain
other respects none of which is here alleged).
The fact that the appellate tribunal would have reached a different
conclusion on the facts is not a sufficient ground for allowing an appeal".
[28] The decision
of the Tribunal in this case was essentially in two parts - first that the
original decision to dismiss was unfair, in that the respondents did not, for
the reasons set out at paragraph 65-68, act reasonably in treating the
appellant's conduct as sufficient reason for dismissal, and secondly that the defects
at that stage could not be said to have been cured on appeal for the reasons
summarised at paragraph 70. The
primary question for this court is whether it can be said that in reaching
these decisions the Tribunal misdirected themselves or made decisions which no
reasonable tribunal could have made.
[29] In approaching
their task, the Tribunal recorded that they did so on the basis that the legal
framework within which they required to make their decision was that set out in
paragraphs 57-61 of their determination.
Both counsel accepted before us that no issue could be taken with that
statement of the legal principles which required to be followed. Counsel for the respondents, however, at one
point appeared to argue that it could be inferred that the Tribunal had failed
to apply these principles, in particular that they had wrongly substituted
their own view of what would have been reasonable. In the event, this argument was not strongly
pressed and we are unable to accept it. We
can, in particular, see no basis, on a fair reading of the determination, for
concluding that having stated the legal principles to be applied the Tribunal
then failed to follow them. We remind
ourselves further at this point that, absent any misdirection, the question of
whether or not an employer has behaved reasonably in dismissing an employee is
a question of fact;
indeed, a question on which different people looking at the same
set of circumstances may reasonably come to different conclusions (see e.g. the
observations of Griffiths L.J. in Gilham
and Others v Kent County Council
at page 240).
[30] Against that
background we ask ourselves first whether in reaching the decision that the
original decision to dismiss was unfair, the Tribunal could in any material
respect be said to have made a decision which no reasonable Tribunal could have
made. Since the two important, and
related, underlying findings which the Tribunal took into account in this part of
their determination were that at the disciplinary stage the appellant was not notified,
and did not know, that he faced dismissal, and that the reason for dismissal
was significantly more serious than the charges as framed in the letter
convening the disciplinary hearing, it became clear in the debate before us
that the critical questions were whether these were, as the respondents argued,
findings which no reasonable tribunal could have made.
[31] We have come
to the clear view that the respondents' contentions in this respect fall to be
rejected.
[32] It is plain,
in the first place, that the Tribunal found as a matter of fact that the reason
for the decision to dismiss (indeed the reason why the respondents regarded the
appellant's conduct as amounting to gross misconduct) was that, as stated by Ms MacDougall
at the end of the disciplinary hearing, the appellant's actions were
deliberately intended, in the context of a work to rule, to cause significant
service disruption. Not only did the
Tribunal hear from Ms MacDougall in evidence, but they had before them the
minutes of the meeting which clearly record that that is indeed what she
stated. We see no basis for the
suggestion that it was not reasonably open to the Tribunal to make the relevant
finding. If it was necessary to look
further to the dismissal letter, it may be that it could be said to have been
ambiguous and thus unclear as to whether it conveyed that the appellant had
deliberately intended to cause disruption, but we think it was plainly open to
the Tribunal to construe it as having conveyed (and having been intended to
convey) that conclusion, consistent with the clear underlying views of
Ms MacDougall. In so far as the
Appeal Tribunal considered (at para. 42 of their decision) that this was
not open to the Tribunal, we cannot, with respect, agree.
[33] Having found
that, we consider it was reasonably open to the Tribunal to conclude that this
"charge" (in particular the contention that this was an act intended to cause
deliberate disruption in the context of an industrial dispute) was not in any
way clearly focused beforehand. The letter
convening the disciplinary hearing referred to bare headings without reference
to any deliberate or collusive design to disrupt. Further it made no mention of gross
misconduct, which alone, in accordance with the disciplinary procedures, might
lead to summary dismissal. While counsel
for the respondents was able, reasonably enough, to argue that it would perhaps
have been clear from the letter (and if not, from the course of the disciplinary
hearing) that what was being alleged was the deliberate taking of an
unauthorised break and not completing the daily task, all in circumstances
where disruption in fact resulted, we are not persuaded that it can be said
that it was not reasonably open to the Tribunal to conclude not merely that the
reason for dismissal was significantly more serious than the charges as framed
but also that the appellant did not know that he faced dismissal. We do not consider there is anything in the
disciplinary procedures which would necessarily have alerted him to the fact
that he faced potential dismissal. Nor
do we think it could be said that he must have known that because he had
representation. Mr Crawford did not
give evidence before the Tribunal and what he believed was likely is unknown. We must again respectfully disagree with the
contrary conclusions of the Appeal Tribunal expressed at paragraph 41 of
their decision. The Tribunal's finding
that had the appellant known these matters he would have told the full story,
must, it seems, have depended on their assessment of him as a witness, which
was a matter entirely for them.
[34] If these
underlying findings cannot be impugned, we consider that no basis is left for
the suggestion that the Tribunal's conclusion as to the fairness of the
original decision to dismiss was one which no reasonable tribunal could have
reached. At the end of the day, we did
not understand counsel for the respondents to argue to the contrary. The only point where the reasoning of the
Tribunal may be said to have been expressed without absolute clarity is perhaps
the first sentence of paragraph 68.
It is, we think, enough to say that on a fair reading of that sentence,
the Tribunal were concerned as to the reasonableness of the procedures adopted
which led to Ms MacDougall's belief as to what the appellant had
done. Although the Appeal Tribunal were
critical of the approach of the Tribunal at this point, it appears that they proceeded
on the basis that the conduct which led to the appellant's dismissal went no
further than that he had been caught red-handed taking an unauthorised break
(see paragraph 39). In our view,
the overall conclusion of the Tribunal at this point was entirely consistent
with the notion that a fundamental principle of a fair disciplinary procedure
(as emphasised, for example, in Strouthos
v London Underground Ltd) is that an
employee should know the case against him.
[35] The question
remains as to whether it could be said that the Tribunal's conclusion that the
earlier deficiencies were not cured on appeal was one which no reasonable
Tribunal could have reached. Although we
could not support the Tribunal's reasoning in every respect, we have come once
more to the view that that question falls to be answered in the negative. Of particular significance, we consider, is
the finding that although an important part of the reasoning of the convenor of
the appeal panel was that he would have expected the appellant to have given a
full account if he knew that he faced dismissal, not merely did he (and by
inference the other members of the panel) not know that the appellant was
unaware that he faced dismissal but also that the reasons for dismissal
differed from the complaints set out in the letter convening the hearing. The significance of that is that if the
Tribunal were reasonably entitled to form their views as to the unfairness of
the earlier decision, they were reasonably entitled to find that that unfairness
was not cured on appeal. Indeed, we did
not understand that to be seriously disputed by counsel for the
respondents. The question of whether the
Tribunal were justified in their concern as to the reasonableness of the
removal of Mr Elder's observations on the credibility of the appellant's
"account" is less straightforward, given the explanation put forward by the
respondents. The Appeal Tribunal plainly
thought the explanation afforded was reasonable (see para. 43 of their
decision). The question for this court,
however, is whether it could be said that it was not reasonably open to the
Tribunal to reach the view they did. We
are not, in the particular circumstances of this case, persuaded that that
could be said. In particular, only
Mr Elder saw and heard the full explanation which was given to him, which
included evidence from the appellant's partner, whom no one else had seen. Further it would appear that the appeal panel
were content to allow Ms MacDougall to express her own personal opinion of
the credibility of the appellant's account, despite the fact that she
instructed Mr Elder to carry out the further investigation.
[36] We do not,
however, consider that the Tribunal's views as to the lack of impartiality of
the appeal panel can be sustained. We
would entirely agree with the Appeal Tribunal when they say,
"Moving then to the matter of taking
account of Ms MacDougall's views, the fact that the appeal panel was
influenced by her views does not mean that they were not impartial. They could, equally, have declined to follow
them. The fact that they agreed with her
is not evidence of their being partial to or biased in favour of
management. It seems to us that the
Tribunal have misunderstood the concept".
Nevertheless, this criticism of the Tribunal's decision does
not, in our view, undermine their decision as a whole, which, for reasons
already given, cannot reasonably be impugned.
[37] In these
circumstances, we shall allow the appeal, set aside the order of the Appeal
Tribunal dated 3 July 2007 and restore the judgment of the
Tribunal dated 5 July 2006.
