United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 355_93_1312

Appeal No. EAT/355/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th December 1993

Judgment delivered on 21st December 1993

Before

THE HONOURABLE MR JUSTICE TUCKER

MISS A MADDOCKS OBE

MR T C THOMAS

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CONFEDERATION LIFE INSURANCE CO LTD          APPELLANTS

MR F COULTER          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR T DUTTON

(Of Counsel)

Messrs Speechly Bircham

Bouverie House

154 Fleet Street

London

EC4V 2HX

For the Respondent MISS D L CORBIN

Solicitor

1st Floor

Index House

Peak Centre

Midhurst Road

Liphook

Hants

GU30 7DD


 


MR JUSTICE TUCKER: This is an employers' appeal from the decision of an Industrial Tribunal sitting at London (South) that the Respondent was unfairly dismissed, and awarding him the sum of £10,990. It was a reserved decision announced on 22nd March 1993 after a hearing which took place over 8 days. The Tribunal felt that there had been nothing in the Respondent's conduct which justified any reduction of award.

The Appellants are a well known Insurance Company. Their head office is in Toronto, and they have many offices in the United Kingdom. One of these is at Guildford, and that is where the Respondent was employed as Branch Manager. He started his employment with the Appellants on 5 May 1987, and the effective date of termination was 13 December 1991 (2 years ago today). He is now aged 45. He is a married man whose home is in Northern Ireland, where his wife lived. For the purposes of working in England, the Respondent lived in a flat in Farnham apart from his wife.

The circumstances giving rise to the Appellants decision to dismiss the Respondent from their employment were that 2 women alleged that he had been guilty of sexually harassing them. One of these ladies (CR) was employed by the Appellants at the Guildford office as an Underwriter. The other (BT) was a client of the Appellants in that she held a number of Insurance Policies written by them. Thus they were both ladies whom the Respondent met as a result of and in the course of his employment - they were both ladies in their late 20s/early 30s, - they were both separated from their husbands - and they had both been in the nursing profession - in each case the conduct complained of commenced in September 1991 -6 September in the case of BT, 17 September in the case of CR. There is nothing to suggest that they knew each other, or that they had conspired together against the Respondent.

The grounds of Appeal are that the Tribunal wrongfully took upon itself the task of investigating or evaluating the allegations made by the 2 complainants, and that it failed to apply the criteria laid down in BHS v. Burchell [1978] IRLR 379 as explained in later cases. Moreover it is alleged that the Tribunal should have found that the Respondent contributed to his dismissal, and that they applied the wrong test in law or reached a perverse decision being one which no reasonable Tribunal could reach.

We agree that what the Tribunal had to decide were 3 things, as set out in Burchell, ie first, whether the employer believed in the guilt of the employee of the misconduct alleged against him. Second, whether the employer had in his mind reasonable grounds upon which to sustain that belief. Third, whether the employer, at the stage when he formed that belief on those grounds, and at any rate at the final stage when he formed the belief on those grounds, had carried out as much investigation into the matters as was reasonable in all the circumstances of the case.

There is no difficulty about the first of these criteria. The Tribunal made a clear finding that Mr Burns-Green, the Appellants Director of Personnel Central Service genuinely believed that the Respondent was guilty of the misconduct charged. There is, and could be, no criticism of this finding. As to the third criterion, the Tribunal found that Mr Burns-Green arrived at that belief without making as much investigation as was reasonable in the circumstances. The Tribunal amplified this finding by stating that in the circumstances which they set out they considered that Mr Burns-Green did not act reasonably in not enquiring further for some solid independent evidence.

But the Tribunal made no finding as to whether the second criterion had been satisfied, and this is at the heart of the Appellants' argument.

The Appellants accept that there may be some elision between the second and third stages of the inquiry, but they submit that a Tribunal that leaves out the second stage falls into error, and that the error is compounded if the Tribunal then conducts its own analysis of the quality of the material or if the Tribunal comments upon the evidence or lack of it or criticizes it. It is submitted that if the Tribunal had approached the matters correctly it should have concluded that the employer did have reasonable grounds to sustain the belief in the misconduct, and that it is open to EAT to make that finding now. It is further submitted that if the Tribunal had properly addressed its mind to that matter it would not or should not have criticized the nature of the investigation under the third stage of the inquiry.

This latter contention has caused us some difficulty. We do not follow how a failure to consider whether reasonable grounds exist for the belief, can or should cause us to reverse the Tribunals clear finding that the investigation was defective. There is nothing in the Appellants' skeleton argument which assists us on this problem, and despite putting the question to Mr Dutton the Appellants' Counsel, and listening to his argument, we are still quite unable to accept that one consequence follows the other.

Some of the submissions made by Miss Corbin on the Respondent's behalf were unappealing. But we do agree with her submission that Burchell is authority for the proposition that all three of the requirements therein set out must be satisfied. The Tribunal made a clear finding that the third of them had not been complied with. It cannot in our view invalidate that finding if the Tribunal do not make any finding about the second requirement.

The Appellants second submission is that the Tribunal erred in law in its approach to the question of contributory conduct. They submit that the proper approach is set by Section 74(6) of the Employment Protection (Consolidation) Act 1978:

"Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to such finding."

Counsel for the Appellants submits that the Tribunal wrongly imposed a fetter upon itself by observing in paragraph 23 of their decision that it is a serious matter to reduce an Applicant's compensation for unfair dismissal, and that they should exercise their discretion with care. The Tribunal went on in paragraph 25 to find that it would not be just to reduce any award made to the Respondent to reflect any blameworthy contribution made by him to the dismissal in the particular circumstances of this case.

Mr Dutton also complains that the Industrial Tribunal purported to "Note" a number of matters, but did not make any findings about them. He submits that the Tribunal reached a perverse decision - and that it was not confirmed in the assessment of the question of contributory fault to a decision of the allegation of sexual misconduct. It is submitted that the Tribunal should have had regard to the Respondent's involvement in the breast measuring competition, where CR's evidence was confirmed by Karen Wright; to the Respondent's refusal to co-operate in the Inquiry held on 29th November; to his threat of libel actions which he then used as a reason not to answer questions; and to his breach of the code of conduct of his profession.

It is true that the Tribunal do not deal with these matters in any detail in their Decision. But they do mention them towards the end of paragraph 25, in these terms:

"We consider that it would not be just to reduce any award made to Mr Coulter to reflect any blameworthy contribution made by him to the dismissal in the particular circumstances of this case. In particular, we do not think that Mr Coulter's refusal to answer orally the allegation justifies a reduction. His failure to pursue an internal appeal, his issuing proceedings against Mrs C R and the `breast measuring' do not justify a reduction in the circumstances."

In our opinion the Tribunal had these matters sufficiently in mind to enable them to make a decision about them. We cannot accept that the Tribunal's decision was perverse, and we do not agree with the submission that the Tribunal wrongfully fettered the exercise of their discretion. It is not for us to substitute our view for that properly reached by the Tribunal or to evaluate the evidence. Suffice it to say that there was in our opinion evidence upon which a reasonable Tribunal properly directing itself could have reached the decision which this Tribunal came to. It might not be a decision which we would have reached, but that is not the test. Having regard to the attitude displayed by the Appellants to the Respondent immediately after the investigation, and the suggestion to him that he might resign, we can see some justification for the attitude which he subsequently adopted, particularly when he was acting on the advice of his solicitor.

We have already dismissed this appeal. These are our reasons for doing so. Miss Corbin applied for costs. There are no grounds for this application, and we have refused it.