United Kingdom Employment Appeal Tribunal

BAILII case number: [1991] UKEAT 589_89_2506

Appeal No. EAT/589/89

EMPOLYMENT APPEAL TRIBUNAL

4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

At the Tribunal

On 25th June 1991

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MR D G DAVIES

MR R H PHIPPS

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MRS G WILLIAMS          APPELLANT

THE MAYOR & BURGESSES OF THE

LONDON BOROUGH OF WANDSWORTH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR I ADDOO

(Of Counsel)

Messrs Livingston Solomon

Solicitors

Unit 5

Perronet House

St Georges Road

Elephant & Castle

LONDON SE1 6HE

For the Respondents MR C JEANS

(Of Counsel)

Mrs S G Smith LLB

Borough Solicitor

Wandsworth Borough Council

Administration Dept

The Town Hall

Wandsworth High Street

LONDON SW18 2PU


 


MR JUSTICE WOOD (P): By an Originating Application dated 7th March 1989, Mrs Williams alleged that she had been unfairly dismissed by the Respondents the London Borough of Wandsworth. Her case was heard before an Industrial Tribunal sitting at London (South) under the Chairmanship of the learned Regional Chairman, Mr Oliver Lodge and with Mr Aziz and Mr Khan as the two lay Members, on three days, two in July and one in September 1989.

The Industrial Tribunal found against her, dismissed her claim and awarded the Respondents £100 in respect of their costs. There is no appeal on the issue of costs. The basis on which the costs were awarded was that after the first day of the Hearing it was abundantly clear that the case was hopeless and that it was unreasonable for the Applicant to continue. The costs awarded were of a nominal amount.

The history of the matter is, if we may say so, admirably and succinctly set out in the "Full Reasons" from which we abstract the following facts.

The Applicant began employment with the Respondents in August of 1981. In July 1982 she was promoted into the position of Assistant Officer in Charge, and that was in connection with homes for old people within the Borough. She was one of three Assistant Officers in Charge at Holybourne Home; the other two were Miss Sandiford, who had been employed for longer than the Applicant, and Miss Karizza, who had been employed for a shorter period. The immediate Officer in Charge of those three was Mr Crockford.

The Tribunal found specifically that all three Assistant Officers were of equal grade and status. It seems that there was a practice that the first of those Officers on duty, on a particular day, would be responsible for signing various documents which needed to be signed, and to that extent they had that additional duty or status on that day, but in effect the finding of the Tribunal on the evidence was that they were all of equal grade and status.

In the latter part of 1988 Holybourne was short of good furniture. Another old people's home, Dawes House, was either closing down or had spare furniture and it was sent across on the morning of the 12th December 1988. At that time the Applicant was on duty and she gave instructions to the handyman, a Mr Bent, to distribute the furniture all round, but one bookcase was to be put in the lobby near a telephone. That bookcase was one of a pair; we have a photograph of that bookcase, which was before the Industrial Tribunal, and it would seem to us to look as near as no matter new, certainly in excellent condition.

On that day the Applicant was overlapping in her duty with Miss Sandiford. After the Appellant had returned Miss Sandiford looked for, but could not find Mr Bent, the handyman and when she did find him, about 4 o'clock, she asked where he had been. He said he had been helping the Applicant put a bookcase in a car and Miss Sandiford assumed that this was the bookcase she had seen in the lobby but thought no more about it. It was only two or three days later that Miss Sandiford was aware of the delivery of furniture from Dawes House, when Mr Crockford informed her about it. She then recalled the incident on the 12th December, mentioned it to a Mr Pollard, who was a resident Social Worker and he suggested that she should tell Mr Crockford. She did not do this immediately and on the 6th January 1989, Mr Pollard spoke to Mr Bent and Mr Bent went to Mr Crockford, so on Monday 18th January 1989 a good deal happened. First of all, Mr Bent gave a fuller account of the matter to Mr Crockford and a statement was prepared and signed by Mr Bent, and that was set out in the Industrial Tribunal's Decision in paragraph 4; then Mr Crockford took a statement from Mr Pollard, that is set out; then he took one from Miss Sandiford, and that was set out. He then prepared a written report referring to each of those statements, and those reports and his statement went to Mrs Hunter, all on that same date.

On the afternoon of the 9th January Mrs Hunter, who was the Care Services Manager, saw the various documents and she saw Mrs Williams, the Applicant, in the presence of Mr Crockford. The Applicant did not deny that she had removed the bookcase. Mrs Hunter told Mrs Williams that the matter might result in disciplinary proceedings and then made a note of what had taken place. She said this:

"I informed Mrs Williams that a report had been received which alleged that she Mrs Williams had removed a bookcase from Holybourne without permission and that if true this constituted theft of Council property."

and then at the end of her note she said:

"I informed Mrs Williams that the report would be taken to Senior Management for consideration for action under the Disciplinary Code for a major offence."

Still on the 9th January at about 4.45 pm the Assistant Director, Mr Carter told Mr Crockford that he should suspend the Applicant;  so Mr Crockford did so and asked her to leave the building, which she did.

The following day Miss Sandiford made a second statement and that is set out at paragraph 10 of the Decision. All of those matters were clear evidence before those responsible for management in the Borough.

The next paragraph in the Decision is of vital importance. The defence being put forward by Mrs Williams was "Oh yes, I did take the bookcase but I had the permission from Miss Sandiford, who I regard as my superior". The Tribunal had already found, as we have indicated that she was not. But they then had to decide whether the Respondents were reasonable in refusing to accept the Applicant's defence; so they heard Miss Sandiford; they heard the Applicant and they look at the position as the employers had seen it and they say this:

"In evidence Miss Sandiford denied that she had given the applicant permission to take the bookcase and said that she would have had no authority to do so. We accept that evidence. We find that none of the Assistant Officers in Charge at Holybourne had any authority to give instructions to either of the others and that this fact was well known to the applicant."

So the Decision was made that the matter would have to go forward to a disciplinary hearing. Mrs Williams was informed by a letter of the 10th January. On the 17th Mr Bent made a second statement in which he alleged that Mrs Williams had tried to make him change his original statement, and the matter came on for a disciplinary hearing before Mr Goodman, Director of Social Services on the 6th February; this was continued on the 4th February.

Mrs Williams, the Applicant, instructed solicitors and they briefed Counsel, Mr Addoo. Mrs Williams has had the advantage of being represented by Mr Addoo, first of all at the disciplinary hearing; then on the appeal hearing; then before the Industrial Tribunal; then before us today.

There is no criticism of the hearing before Mr Goodman; the witnesses were called; cross-examined and there is a long and careful note about which no criticism is made, and it is quite clear that that was a normal hearing, in the way one would expect as if indeed, in a Court. The allegation was that Miss Sandiford and Mr Bent were telling lies, Mr Goodman had to make up his mind and Tribunal find in paragraph 19 as follows:

"Having heard the evidence Mr Goodman said that he did not believe that either Miss Sandiford or Mr Bent were lying. He was satisfied that the applicant took the bookcase knowing that she should not have done so and that she was guilty of theft. He dismissed her summarily and informed her of her appeal rights. The decision was confirmed the decision by a letter dated 27 February 1989".

That is to be found on page 32 of the bundle of documents before us, it states there that:

"the Director decided that you have committed a major offence under the Employees' Disciplinary Code by virtue of your conduct on 12th December 1988 when you stole a bookcase belonging to the Council from Holybourne Old People's Home and, on 9th January 1989, when you attempted to influence witnesses."

The appeal was heard by the Staff Management sub-Committee on 27th April 1989 and the case for the Council was presented by Miss Poupard, the Acting Director of Social Services; the Applicant was again represented by Mr Addoo.

The Applicant on this occasion changed her defence somewhat, she said she had not taken the bookcase for herself but because she knew a mature student who would like it. However, having heard the matter the Staff Management Committee resolved that the Applicant had committed these offences and after hearing submissions as to the appropriate course to be taken, they dismissed the appeal.

Before the Industrial Tribunal Mr Addoo took a number of points, two of them are the major points he takes before us today. First of all we take the second one which is to be found in paragraph 25 of the Decision. That point was taken in connection with the document on page 23, that was the 10th January 1989, informing the Applicant that the disciplinary hearing would take place before Mr Goodman. It was sent to her by a Mr Marcus Loxton, the Senior Personnel Officer and the last sentence of the letter reads as follows:

"I would remind you that one possible outcome of this case is your dismissal from the Council's employment."

The point taken by Mr Addoo before the Industrial Tribunal and again before us, was that this indicated that a decision had already been made that the Applicant would be dismissed and that was pre-judging the case. The Industrial Tribunal said that was simply untrue and they point to the phrase "one possible outcome". We pointed that out again to Mr Addoo and in fairness to him I do not think he pressed that particular point.

However there are two other matters, the first matter is that Mr Addoo submits that the Respondents did not comply with their own disciplinary procedures. He refers, as he had referred the Industrial Tribunal to paragraph 12 under a general heading "Major Offences" in a document which is dealing with conduct and disciplinary matters; it is headed "Employees' Disciplinary Code". Paragraph 12 indicates that:

"When it appears that a major offence has been committed, the case shall be referred for consideration to the employing Director, and the employee shall be so informed. He/she shall interview the employee who may be accompanied by a trade union or other representative."

Pausing there, it is submitted by Mr Addoo that the interview, which was carried out by Mrs Hunter, the Care Services Manager, on the 9th January, was an interview which was not carried out in accordance with procedure. However, when one reads on in paragraph 12 of the pamphlet it seems to us quite clear that the interview being referred to is the disciplinary interview, it is the start of the disciplinary hearing. The second part of the paragraph reads:

"Before interviewing an employee in respect of a possible major offence the Director shall first consult with the Chief Personnel Officer. The employee shall be informed in writing giving at least five clear working days' notice that he/she is to be interviewed on a disciplinary matter with sufficient detail to convey its nature, identifying the matter as a major offence under the code and that he/she is entitled to be represented at the interview by a trade union or other representative. A copy of this code shall accompany the notice."

THE HEARING PROCEDURE AND EXAMPLES OF MAJOR OFFENCES ARE GIVEN IN APPENDIX 1 AND APPENDIX 4."

and then paragraph 13 goes on with the penalties that can be ordered if there is found to be an offence as alleged. So that the whole of paragraph 12 and 13 deals with the question of a disciplinary hearing, and indeed, looked at in the round, including the following paragraph "Rights of Appeal" and so on, it is clear that although not headed as such, that was really referring to the disciplinary procedures; indeed turning to the letter to which we have already referred of the 10th January on page 23, that fulfils all the requirements of that particular disciplinary case. We therefore accept the view expressed by the Industrial Tribunal in paragraph 24, perhaps on slightly different grounds that paragraph 12 had been complied with.

The third matter which was put before us by Mr Addoo was that at the appeal hearing the procedure that was adopted was to refer to the earlier evidence which had been taken before Mr Goodman. What happened was that someone had taken a careful note of the hearing before Mr Goodman and then using those notes had produced a precis of the evidence, and of course, the statements were attached, as I understand it, for the use of the management committee on the appeal. When one looks at the notes of the appeal it is clear, it is on page 68, that the procedure was discussed and it is noted that it was then agreed that each employee would be asked to confirm the record, and then asked additional questions. Mr Addoo told us that he objected to that, but unfortunately there is no note of his objection; anyhow, each witness was called, was asked whether the record that was put forward was accurate and indeed in a number of cases witnesses said "no" they thought that the precis was not accurate entirely, and made changes to it. In each case Mr Addoo was able to cross-examine and to treat that matter in the usual way, to test the evidence and put his client's case. When Mrs Williams came to give her evidence, it seems as though Mrs Williams was treated in the same way. There is a long note of her evidence and of the way in which she was cross-examined.

In order to test that last point made by Mr Addoo, it seems to us necessary just to see exactly what the function of this appeal was. He referred us to the possible view that the appeal hearing was not a re-hearing. However, the situation was different from that Whitbread & Co plc v Mills because in the present case there was no criticism by Mr Addoo of the initial disciplinary hearing before Mr Leo Goodman. Therefore, it was not necessary to find that the appeal hearing was a re-hearing; it could quite properly and reasonably have been a review of the initial disciplinary process. What then happened in the present case? Whether it is called a "Review", whether it was strictly a re-hearing, the real issue is whether there was any unfairness in the disciplinary procedure and what happened was this, the summary, statement or precis - call it what one likes - was put before each witness, each witness corrected it or added to it, was cross-examined and then the whole of the evidence was considered and the decision reached by Mr Leo Goodman was upheld.

The Industrial Tribunal found nothing unfair in the way that hearing had been conducted and we likewise can find no unfair defect in the way in which it was handled. Indeed, we would respectfully agree with the Industrial Tribunal who said of the disciplinary procedure:-

"Indeed, in many respects, each was a model of its kind."

The final submission made in his skeleton argument by Mr Addoo was that:-

"....... the decision was unfair, harsh and inconsiderate."

Before deciding to dismiss as the appropriate remedy for what was found to be dishonesty, as indeed the Industrial Tribunal had found it to be, the Employers undoubtedly went through a process of careful consideration. We have the notes at page 50 of the bundle of exhibits and that indicates that:-

"Mr Goodman looked through Mrs Williams' personal file to establish her work record. He mentioned the following:

-Mrs Williams' sickness record;

-informal meetings with the Officer-in-charge;

-the record of the current serious offence on file;

-a warning given in July 1988 ..................;

-a letter from Mrs Hunter in 1987..............;

-a further letter from Mrs Hunter in May 1988......;

-several interviews with Officers-in-charge in the past about sickness."

There was a careful review of the whole history of this matter and the background and the decision was reached against those facts. The Industrial Tribunal applied Section 57; they looked to see whether the decision to dismiss was within the band of reasonable responses of a reasonable employer and they found that it was. Having reviewed that matter and the whole history of the decision of the Industrial Tribunal, it is just as well to remind ourselves that we are here to ascertain whether there was any error of law in the way in which the Industrial Tribunal dealt with this matter, and not to re-try the whole case nor to re-try the disciplinary proceedings before the Borough of Wandsworth.

We have listened with care and we are quite unable to find any possible criticism despite the able submissions of Mr Addoo for which we are most grateful. This appeal must be dismissed.