United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 33_93_2906

Appeal No. EAT 33/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th June 1993

Before

HIS HONOUR JUDGE J HULL QC

MR J C RAMSAY

MR S M SPRINGER MBE

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CORAL RACING LIMITED          APPELLANTS

MR W GOUGH          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MRS E ANDREW

(Of Counsel)

Messrs Maclaren Warner

Solicitors

6th Floor, Fenchurch House

King Street

Nottingham

NG1 2AS

For the Respondent MR J McMULLEN

(Of Counsel)

Messrs Pattinson & Brewer

Solicitors

30 Great James Street

London

WC1N 3HA


 


JUDGE J HULL QC: This is an appeal from a decision of the Industrial Tribunal held at London (South) on the 14th October 1992 to whom the Applicant, Mr Gough, made a complaint against his employers, Coral Racing Limited, that he had been unfairly dismissed.

He was employed as a mobile manager. He had first been employed in March 1986 and his employment ended in unhappy circumstances on the 27th December 1991.

The employers, in their Notice of Appearance, put the matter like this:

"Mr Gough's dismissal followed thorough investigations into two bets which were both placed late, ie after the races were `off'. Mr Gough was the shop manager on both occasions. In addition, the investigations revealed;

1) The cashiers do not recognise either of the bets as being those of known customers.

2) There were no other bets placed by the same customer on the same day, on both occasions.

3) Both bets were for the last race of the day

4) The cashiers were sent home early on both occasions.

5) Both bets were photographed late.

6) There were alterations made to the bets which coincide with the running order during the progress of both races.

The investigation and disciplinary hearings were conducted in line with the Company's disciplinary procedures giving Mr Gough ample opportunity to state his case.

Following the investigations, the Area Manager had reasonable grounds to believe that the bets were place by Mr Gough. The placing of personal bets is a gross misconduct offence under the Company's rules. In addition there were `reasonable grounds' to believe that the two bets were fraudulent, this also being a gross misconduct offence."

It is summed up on the first page at Box 3 of the Notice of Appearance:

"The placing of two personal bets. Both bets were placed late and were of a fraudulent nature."

So that was the allegation which was made against Mr Gough. The Tribunal put it like this, at paragraph 9.

"In this case the employers ground for dismissal was gross misconduct and we find that they had reasonable grounds for believing that misconduct of some kind had occurred."

It has been made plain to us and is not contested that that means, of course, misconduct of some kind by some person, not by Mr Gough.

"We are however not satisfied that they carried out a proper investigation. Their own investigation into Miss Lecky's movements on December 4, which was very material as to who had accepted the doubtful bet on that day was inconclusive, their request for an analysis of handwriting, also crucial, was not even undertaken until after the second appeal hearing, and their investigation of the possible customers who might have written the betting slips was cursory and superficial, and it is unclear as to the timing of that particular part of their investigation.

10. We also find that following the investigation there was no proper disciplinary hearing which gave the Applicant an opportunity to explain his own position within a context of a disciplinary hearing rather than a preliminary investigation. He had throughout the investigation denied that he had behaved dishonestly and he should have been given an opportunity between the investigation and the so called disciplinary hearing to consider his own position and be given time to put forward evidence on his own behalf. The Tribunal has therefore come to the conclusion that this is an unfair dismissal."

and expanding on those matters the Chairman has said that no misconduct was established against Mr Gough. So it was a straight allegation against Mr Gough by his employers that he had been guilty of gross misconduct coupled with dishonesty in causing these two dishonest bets to be placed and that was their case. In particular it was not advanced as a ground for dismissal, in the alternative, that if somebody else was guilty of these matters and it was not Mr Gough's action, nonetheless he as manager should have had in place procedures, and should have exercised supervision, which would have prevented this gross irregularity taking place in the premises which were under his control. That was not part of the employers' case.

So all that was tried. The Industrial Tribunal, finding that the employers had carried out an investigation, had to consider whether it was a fair and proper investigation and they held that that was not so and they criticised severely the investigation which had taken place. It was the view of the Tribunal that it was not right to convict Mr Gough, on the basis of that investigation, of anything. But it did not stop there because the Tribunal also had to consider whether Mr Gough had contributed to his dismissal, basing themselves on the well known principle that even if the investigation is not properly carried out by the employer, nonetheless the Tribunal may be asked to say that he was in fact guilty of whatever impropriety or breach of contract was alleged against him and that even if a proper and impeccable investigation had been carried out by the employer still he could not have hoped to escape conviction of it. The Tribunal say that having considered that matter they found that there was in fact no misconduct on the part of Mr Gough. So he was in the unhappy position of having been charged by his employers with a gross breach of behaviour, a gross breach of the rules which was in fact dishonest, and in the happy position that the Tribunal, having considered those facts, came to the conclusion that that was not justified and moreover that he had not been fairly treated by his employers when they considered that matter. Concerning those findings there is no dispute and no further controversy; it is not alleged that the Tribunal considered matters which they should not have done or failed to consider matters which they should have done, or applied any wrong principle of law. But what happened then is the subject of controversy.

The Tribunal went on without adjournment to order re-instatement and according to the Chairman's statement, at page 8 of our papers,

"It was not a reserved decision. After giving its decision the Chairman drew to the attention of Ms Farrell, the appellant's representative, the respondent's request for reinstatement."

that of course was a courtesy although it is quite obvious on the application, it is stated expressly, that that is what Mr Gough wanted.

"She was asked if she wished to address the tribunal and indicated that she did not wish to do so. There were no management witnesses in attendance on the second day who could have given evidence on practicability, although it was known that the respondent was seeking reinstatement, and no adjournment was requested.

No request for a review of this part of the tribunal's decision has been requested, on any of the grounds available to the appellants."

Ms Farrell, who was the advocate for the employers, has made an affidavit. She says that she is a Personnel Manager and she says:

"At the end of the two-day hearing, it was announced by the Tribunal that the Applicant was unfairly dismissed. After giving its decision the Chairman drew to my attention the Applicant's request for reinstatement and asked if I had anything to say about it. I initially said `No', but then went on to say `I'll have to take advice on this'. Mr Hurst [he was a trade union representative] who was representing Mr Gough, then commented that Mr Kavanagh, to whom I am immediately responsible at Coral Racing Limited would normally deal with such matters . . ."

pausing at that point, to say "I'll have to take advice on this" is of course something people say when they are thinking of an appeal it is not a request for an adjournment at all. Then the representative for Mr Gough, it seems to us very fairly, said Mr Kavanagh the person who should deal with this at management level is not here today. That was really saying to Ms Farrell: if you want to ask for adjournment you should do so. But she did not. What she says about that is this:

"I would stress that I am not legally qualified and I had no idea that I could apply for an adjournment whilst I considered making submissions about the reinstatement of Mr Gough. It was not suggested to me that I could have applied. I stated that I would have to speak to the Area Manager concerning the practicability of re-instatement, but it was at no time mentioned to me by the Chairman that I could have called witnesses about the question of practicability of reinstatement of Mr Gough.

I would have wished to have had the opportunity, if I had been given it, to explain in a logical and reasonable way why Mr Gough could not have been re-employed by Coral Racing Limited."

That was exactly what the Chairman had just offered her, "have you anything to say about this?" and that was her opportunity to explain in a logical and reasonable way, being of course on notice, why reinstatement should not happen. Then she says:

"I would possibly have called the Senior Manager to explain that Coral's business is essentially a cash business and it is of the utmost importance that they have total confidence in their employees."

If the Tribunal had merely found that there had been a procedural irregularity the employers might very well have had reasonable grounds for saying: "in spite of our procedural irregularity we do not have any confidence in this fellow, we suspect him of dishonesty, indeed we believe he has been guilty of dishonesty". But the Tribunal had been into all that and it was no longer open to Ms Farrell or anybody else to tell this Tribunal that the employers still reasonably had suspicions of Mr Gough's honesty. Mrs Andrew tries to get round that by saying: well, of course, they also had to have faith in his competence. But if that was the position and they felt that they were justified in not employing him on the basis of incompetence then that should, one would have thought, have been part of their case before the Tribunal and it was not. Central to this is the fact that Ms Farrell, she says because of inexperience, did not ask for an adjournment at this point. We have been referred very helpfully, by Mrs Andrew, to authorities which show that when the question of reinstatement arises at the end of a case the Tribunal should consider that separately, that is to say it may or may not be settled by all that has gone before, there may be other considerations, and in those circumstances if an adjournment is reasonably asked for it should be granted. We have been referred to the leading case of Port of London Authority v. Payne & Others [1993] ICR 30 and in that case at page 54 this Tribunal, through its President, said as follows: a tribunal should decide practicability and should do so at this stage before the employers have refused, as sometimes happens notwithstanding the order, to reinstate, because there again practicability arises and this Tribunal said at page 52:

"Although we do not agree with that part of Mr Pardoe's first submission which argues that there is no general discretion since there may well be occasions on which an industrial tribunal will find that re-engagement is practicable, yet it would decide not to make the order. We do not know how rare this would be, but an industrial tribunal on the guidance given in the cases must be satisfied that the new situation which it is ordering will in fact work. To quote from the Timex case, at p.524: `if they are satisfied that it is unlikely to be effective, they will no doubt not make an order.' It must be a realistic appraisal and it must bear in mind that the employer would already have been penalised. An employer must be allowed to manage his own business. To restrict the factors capable of being taken into account is likely to create problems for the future rather than to simplify the industrial tribunal procedure. Arguments could arise as to whether or not a set of facts fell within the word `practicable'. Appeals could abound. One should also not forget the importance of trust and confidence in the employer/employee relationship and indeed, questions of capability."

Mrs Andrew also referred us to the case of Pirelli General Cable Works v. Murray [1979] IRLR 190 and in that case this Tribunal, by its Chairman, Mr Justice Bristow said, at paragraph 13 which is at page 192:

"By s.68(1) of the Employment Protection (Consolidation) Act 1978, if the Tribunal finds that the grounds for the complaint are well founded, `it shall explain to the complainant what orders for reinstatement or re-engagement may be made under s.69 and in what circumstances they may be made, and shall ask him whether he wishes the Tribunal to make such an order, and if he does express such a wish the Tribunal make an order under s.69.'

This requirement, however unnecessary it might seem in cases where a `complainant' is professionally represented, is mandatory. So the Tribunal has first to decide whether the dismissal was unfair. Having done so, if `yes', then it must explain reinstatement and re-engagement and ask if the complainant wants such an order made. If he says he does, then it must go on to consider whether or not to make either order in the light of the provisions of s.69, and must hear both complainant and employer, if they desire to be heard, and certainly give them an opportunity to be heard, before exercising its discretion to make such an order or not. Moreover, by s.69(4), on making an order for reinstatement the Tribunal is expressly required to specify its terms."

and, says Mrs Andrew, under s.69(5), in exercising its discretion, the Tribunal should first consider whether to make an order for re-instatement and in so doing should take into account the following considerations:

(a) whether the complainant wishes to be re-instated

(b) whether it is practicable for the employer to comply with an order for re-instatement and

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-instatement.

Those matters, says Mrs Andrew, were not properly attended to. In all the circumstances the Tribunal should, having reached its decision on the complaint and having come to the question of remedy, have granted an adjournment notwithstanding that one was not expressly asked for, so that these matters could be dealt with. When Ms Farrell was asked, says Mrs Andrew, whether she had anything to say and said "no" that was qualified by her saying then I must take advice about this.

Now we are quite satisfied that a Tribunal must exercise its discretion in accordance with its perception of what is fair, and here this Tribunal, having seen that this large and well known Company was represented by an advocate, was entitled to assume that the advocate was competent in the matters with which she was dealing. Any person who undertakes a professional or, indeed, any other duty involving skill is assumed to have the skill which the job requires. Here, the Tribunal was entitled to assume, since the employers had put the matter in the hands of Ms Farrell, that she knew what she was doing and moreover the Tribunal had as we say gone into all the facts relied upon by the employers for their dismissal of Mr Gough. It may very well be that in those circumstances some Tribunals would have thought it right to give the parties an opportunity to consider the matter and perhaps to see whether some solution could be reached without further assistance from the Tribunal. On the other hand the Tribunal Chairman cannot, in our view, be criticised for taking a different line. She had been told that the advocate wished to say nothing about this, and she was satisfied, and in our view reasonably so satisfied, that this Tribunal had heard all there was to be said not merely on the subject of whether the dismissal was fair or unfair but (because the same matters were inevitably involved) on whether it would or would not be right to re-instate. In those circumstances this Chairman, with the concurrence of the members of her Tribunal, decided to go on straight away, having been told by the advocate that she wished to say nothing but wished to take advice. We think it was well within the discretion of the Chairman and her Tribunal to proceed in this way, though it may very well be that a different tribunal would have proceeded in a different way.

It is now put to us that what Ms Farrell said was a mistake, and that she was taken by surprise by what happened; that she, on thinking about it, would inevitably have come to the conclusion that there was something to be said, and indeed perhaps some evidence to be called. She says herself "perhaps I would possibly have wished to call evidence" and she no doubt returned to her office feeling that the result had been exceedingly unsatisfactory from the point of view of her employers. That would be a very natural feeling; we would have been surprised to hear that Ms Farrell had any other feeling. One would have thought that she would immediately seek advice either from a lawyer or from an experienced colleague and that it would have been the most natural thing in the world if, in fact, something had been left unsaid that should have been put before the Tribunal, to say at once as advocates do from time to time "I have made a mistake here. There are matters I should have referred to, an adjournment which I should have asked for and submissions which should have been made to this Tribunal." The immediate answer from anybody familiar with the procedure would be: "Go back to the Tribunal and say we ask for a review of this decision not on the basis of any error by the Tribunal but simply because we should have asked for an adjournment and in the event, unhappily, we did not."

Referring to Rule 10 of the Rules Mrs Andrew says the employers could not do that. Subsection (d) is the one which might apply, ie that new evidence has become available, but of course that would not apply because it had not become available since the hearing, it was at all times available. Then she says (e), ie that the interests of justice require such a review, does not apply. We do not agree with that. We think that if an advocate has made a slip, it happens often in other places of course, the advocate concerned or perhaps a colleague will attend at the earliest possible time before the judge or the court or the tribunal concerned and say "we have made a slip; there is an important matter which we want to raise and we did not; will you please re-open the hearing and hear us". That was not done and that, in our view, was something which was open to the employers. They might have done it and indeed from what we have heard they should have done it.

We are concerned with the question whether there has been an error by this Tribunal which amounts to an error of law, the error alleged being, when it is boiled down, that this Tribunal should have granted an adjournment when it was not asked for on the basis that it should have been obvious to the Tribunal that in truth and in justice an adjournment was required, because it was at any rate very much on the cards that further evidence would be called and further submissions would be made after such an adjournment. Pending such evidence and submissions the Tribunal should not have been satisfied that re-instatement was an appropriate and practicable and workable order to make, as of course Section 69 of the statute requires.

We feel unable to accept that. It seems to us that in deciding on the alternative course, after hearing what Ms Farrell shortly said, that she did not want to address the Tribunal, after hearing all the evidence and considering the issues in this case, the Tribunal was entitled to conclude that it had heard all it need hear before deciding that this manager should be re-instated. It was within its discretion to take that course and we think therefore that this appeal must be dismissed.

AFTER ARGUMENT BY ADVOCATES

We think it better to make no order except that the appeal is dismissed without any order for costs.