United Kingdom Employment Appeal Tribunal

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Cite as: [1991] UKEAT 70_90_1211

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BAILII case number: [1991] UKEAT 70_90_1211

Appeal No. EAT/70/90

EMPOLYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 12 November 1991

Judgment delivered on 5 December 1991

Before

THE HONOURABLE MR JUSTICE TUCKER

MR D G DAVIES

MR L D COWAN

ROLLS ROYCE PLC APPELLANTS

MR L A FRANCIS RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR D TURRIFF (of Counsel)

Messrs Claremont Haynes

Solicitors

125 High Holborn

London WC1V 6QF

For the Respondent MR R GLANCY (of Counsel)

Messrs Robin Thompson &

Partners

Solicitors

Compass House

Pynnacles Close

Stanmore

Middx HA7 4XL

MR JUSTICE TUCKER: This is an employer's appeal against the decision of the Industrial Tribunal London North, given on 23 November 1989, that the Applicant Mr Levi Augustus Francis (Respondent to this appeal), had been unfairly dismissed. The Appellants' stated reason for dismissing him was that he had assaulted his foreman Michael Wright by head-butting him on 1 March 1989. The Appellants' case was that following an investigation and a disciplinary hearing they were satisfied that the Respondent had assaulted Wright and that they had dismissed him for gross misconduct. They contended that the decision to dismiss was confirmed at an internal appeal and was further reviewed at an External Conference under National procedure. The Respondent denied any assault. He had applied for reinstatement but his originating application was amended to claim compensation.

The Notice of Appeal is a convoluted document running to 8 pages, setting out the grounds of Appeal in considerable detail. It would have been more helpful if the grounds had been set out concisely on 1 or 2 pages.

In his Answer the Respondent contended that the Appeal was initiated out of time, but this contention was abandoned at the outset of the hearing.

The Respondent was employed by the Appellants as a semi-skilled machine operator at their factory at Watford. His dismissal came about as a result of an incident which occurred at those premises at about 10pm on 1 March 1989. There was an argument between the Respondent and his foreman Michael Wright. It took place in the foreman's office. There were only the two of them present, and there were no other witnesses as to what took place. According to Wright, the Respondent became agitated as he stood up from where he was sitting, and then the Respondent assaulted him by hitting him on the bridge of his nose with his head.

A Mr Gransby saw Wright leaving the office holding his face - he said that "That man has head butted me". At that stage the Respondent emerged and stated he had done nothing of the sort. Mr Gransby said he could not see any blood.

A night shift foreman named Cummings saw Wright at about 10.15pm, Wright appeared distressed. He told Cummings that he had been head-butted by the Respondent. He showed Cummings a smear of blood on the back of his hand and a trickle of blood from one nostril. Wright repeated his complaint to the night shift manager Mr Willcocks, who noticed a small amount of blood on Wright's lip, coming from his nose. There was also a small swelling on the bridge of his nose, and he looked very pale and shaken. There were three other men, named Hanwell, Hankin and Watt who did not notice any marks on Wright. Hankin said he was "Not that close". Watt asked the Respondent if it had been an accident, and the Respondent said definitely not.

At some time, which is not certain, save that it was before 11.30pm, Wright went to the First Aid Room, where he was seen by Sister Rodger. He made the same complaint to her, and she made notes of that and of what she found on examination. These are entitled Medical History. According to these notes, Wright looked shocked and dazed - his nose was bleeding and there was a bruise and graze on the bridge of the nose. It was very painful to touch, but there was no visible sign of displacement. These observations were obviously important, and they assumed an even greater importance, as will appear.

The Respondent has consistently denied the assault. As has been indicated, he also denied any suggestion that the injuries might have occurred accidentally. Since there were only two men present, they could not have been caused by anyone else. That left only the possibility that they had been self-inflicted by the foreman in an attempt to bring about the Respondent's dismissal. But since a number of witnesses said that they did not see any injuries on Wright's face, the first question to be established in any enquiry was whether he had been injured at all. And it was clear that the Appellants had to have an enquiry into such a case as this.

A preliminary investigation into the matter was conducted by the day shift manager, Mr Hine. He felt sure that there was damage to Wright's nose - he found the suggestion that it was self-inflicted was not credible, and he believed that there was a case to be answered.

The next step was to hold a disciplinary hearing. This took place on 7 and 8 March, and it was conducted by the manufacturing manager, Mr Morris. He had the witness statements available to him, and witnesses were called and read them out. However Sister Rodger was not called. Mr Morris had the Medical History available to him, and he read it. He then adjourned the hearing in order to ask Sister Rodger some questions. These were written out on a piece of paper, and her replies were recorded on the same document. She was also seen by the Appellant's Industrial Relations Manager, and by the Respondent's Trade Union convenor, who came to see her together. No-one from either side objected to the course that was adopted, and no-one sought to call Sister Rodger as a witness, or applied for any adjournment for that purpose. Everyone seems to have been content, at that stage with the way the hearing was conducted by Mr Morris. When he came to give his decision, he made clear what he had done.

The first thing that Mr Morris had to decide was whether or not Wright had sustained an injury at all. He said that in view of the conflicting evidence about this he had "to revert to the only objective evidence available, which is from the Medical Department and for that reason adjourned the meeting to verify fully what was witnessed by the nurse that evening". He went on to say that what he confirmed from Sister Rodger was that Wright had received a blow to the face, that there was slight bruising, and there was a graze to the bridge of his nose.

In the view of the majority of us, that is the reason for Mr Morris seeing Sister Rodger ie to satisfy himself that an injury had in fact been suffered. It was not an inquiry into the cause of that injury. Sister Rodger could not have given any first hand evidence about that since she had not been present when it was sustained. We are strengthened in this view by the fact that Mr Morris went on to say this:

"All that I am left with therefore is the decision on the most likely cause of (the) injuries".

It seems to us clear from this passage that he had not received any assistance on this point from anything that Sister Roger had told him. He went on to examine the only suggested alternative cause, ie self infliction, and dismissed it as unbelievable. He said that he was therefore forced to the conclusion that the Respondent did in fact assault Wright, and said that with sincere regret he had no alternative but to dismiss him from the Appellants' employment.

That was not the end of the matter, because on 15 June 1989 an External Conference was held to consider the case further. It was attended by several officials of the Respondent's Union and the Management. Sister Rodger's evidence was referred to - simply in regard to the existence and nature of the injuries, and not as to their cause. There was no complaint about Mr Morris's handling of the disciplinary hearing, and in particular no complaint about the way in which evidence had been obtained from Sister Rodger. The management said that they remained convinced that the Respondent had assaulted Wright, and that the decision to dismiss him was correct.

When the case came before the Industrial Tribunal, the Respondent was represented by Mr Pearce, a Union Official, and the Appellants were represented by the Company Solicitor. It appears that Mr Pearce's principle complaint, if not his sole complaint, to the Tribunal was that there had been a procedural failure in initially suspending only the Respondent, and not Wright as well. The Tribunal saw nothing in this complaint. They themselves seem to have raised the point on which their decision was based, which was that Sister Rodger did not give evidence to the disciplinary hearing, and that if she had done so she would have been able to impart information which might have affected the outcome. We agree with the Tribunal to the extent that it is a pity that the nurse did not give evidence to the disciplinary hearing. The majority would not go so far as to describe it as a "great pity", nor would we regard it as "very serious", or such as to amount to a defect which flawed the proceedings.

The Tribunal expressly stated that they were fully aware that they must not substitute their own views for those of the Respondent. That this is so, is beyond doubt. The Court of Appeal have recently re-stated the principle in BRITISH GAS v McCARRICK [1991] IRLR 305. The Vice-Chancellor (Sir Nicholas Browne-Wilkinson) said this at Paras. 21 and 22 of the Report on page 308:

"Despite the warning as to the appropriate approach in law which the Tribunal had given to itself in paragraph 8 that it is not its function to substitute its own views for that of a reasonable employer, in my judgement the Industrial Tribunal fell into that very error in reaching its conclusion. The decision for the Industrial Tribunal was whether, on the facts which were known or should have been known to the employers, they genuinely believed, on reasonable grounds, that the employee was guilty of the conduct of which he was charged...

In my judgement it was an error of law for the Industrial Tribunal to seek to reopen the factual issues on the basis of which the domestic tribunal had reached its conclusion. If the procedure had been faulty, that would have been a failure by the employer to act reasonably. But on the evidence before the internal domestic body it was for that body to reach the decision of fact whether or not they were satisfied of the guilt of the charge of theft. In my judgement, therefore, there was a genuine error of law by the Industrial Tribunal."

Unfortunately, the majority feel that the present Tribunal fell into the same error. We agree with Counsel for the Appellants that having stated the principle, they immediately departed from it. They allowed many of the witnesses to be called before them and read the statements of several others. In particular they heard evidence from Sister Rodger. They appear to have regarded the most significant part of her evidence as her being told by Wright that the Respondent had done it, whereupon she accepted that he had been head-butted. They said this at para 20 of their Reasons:

"This information was vouchsafed to the Tribunal but not to the disciplinary hearing or appeals. She was not invited to give evidence. If she had been, and if she had given this evidence, would the Respondent have continued to rely on the medical evidence to resolve the conflict?"

and at para 22 they say:

"It was clear from Mrs Rodgers evidence to the Tribunal that if she had not been told by Mr Wright the name of the alleged head-butter she would not necessarily have accepted the symptoms which he presented, as consistent with the allegation that they were caused by headbutting."

These observations formed the basis of the Tribunal's decision, but they are in the opinion of the majority open to criticism. So too were the Tribunal's references to the conflict of evidence and to "the unresolved conflict." It is true that there was a conflict of evidence - but it is important to bear in mind that it related to 2 fundamental issues, and that the medical evidence could only relate to one of them. This was the first question, ie whether any injury was sustained at all.

It was the conflict on that issue alone that the medical evidence could resolve - on that issue the evidence of Sister Rodger was clearly important. But her evidence as to that could not be disputed, and although, as has been indicated, it might have been better had she given evidence, the majority cannot see that any injustice occurred by not having her there - Mr Morris no doubt considered that her presence would serve no useful purpose, and this was in the opinion of the majority a reasonable view to adopt.

The Tribunal appear to have thought that Sister Rodger could have given material evidence on the second issue, which was "Who caused those injuries?" But she could not, because she had not been there when they were caused, and anything which she was told by Wright would only have been hearsay. Perhaps more importantly, there is nothing in the evidence as to what occurred at the disciplinary hearing, or (if it be relevant) in the evidence adduced before the Tribunal, to suggest that Sister Rodger said anything to Mr Morris about any belief which she held as to how the injuries were caused, or as to the identity of the assailant. Accordingly the majority are unable to understand the relevance of the Tribunal's reference to Sister Rodger's evidence to the Tribunal as set out in para 22. She never had said that she accepted the symptoms which Wright presented as being consistent with the allegation that they were caused by head-butting, and so there was no misapprehension to correct.

And in the view of the majority, the Tribunal were wrong to refer to "the unresolved conflict". The conflict, or conflicts had been resolved by Mr Morris, and it was not for the Tribunal to re-open them. Once that matter had been resolved, no uncertainty remained as to what actually took place. Mr Morris made a clear finding that the Respondent did in fact assault Wright. There is nothing to suggest to us that that finding was tainted by any faulty procedure or by any improper consideration. Accordingly it was not open to the Tribunal, any more than it is open to us, to review the decision reached by the domestic body. In view of that finding it was entirely reasonable to order the Respondent to be dismissed. The majority do not agree that this falls outside the band of reasonable responses available to a reasonable employer.

In the view of the dissenting member, Mr Morris's investigation was insufficiently thorough in that he did not confront the Respondent with the information which he obtained from Sister Rodger. Reliance is placed on observations made by the Employment Appeal Tribunal in ILEA v GRAVETT [1988] IRLR 497. Moreover it is the dissenting member's view that on the evidence the Industrial Tribunal were entitled to conclude that the Appellants' decision to dismiss fell outside the bounds of reasonable responses available to a reasonable employer, and to find that the Respondent had been unfairly dismissed.

By a majority, therefore, we allow this appeal. We are of the opinion that no purpose would be served by remitting the case to be reheard, particularly when the offence was committed some two and a half years ago. All the information necessary for us to decide the issue is before us and for that reason we reverse the decision of the Industrial Tribunal and hold that the dismissal of the Respondent was fair.