United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 1000_93_1905

Appeal No. EAT/1000/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 19th May 1994

Before

THE HONOURABLE MR JUSTICE MORISON

MR L D COWAN

MRS T MARSLAND

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MR A P STEVENS          APPELLANT

RANK XEROX LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR G NORRIS

(of Counsel)

Messrs Thorpe & Thorpe

2 Church Street

Ross-on-Wye

Herefordshire

HR9 5HW

For the Respondents MR C JEANS

(of Counsel)

Engineering Employers

Federation

Broadway House

Tothill Street

London SW1H 9NQ


 


MR JUSTICE MORISON: At an Industrial Tribunal held at Bristol, whose written Decision was entered in the Register on 27th April 1993, that is over two years ago, the appellant's complaint of unfair dismissal brought against his former employers, Rank Xerox Ltd was dismissed. In this judgment we shall call the company the `Employers'.

The facts giving rise to this appeal may be shortly stated. In his IT1 the appellant complained that he had been unfairly dismissed "after having been falsely accused of sexual harassment". He gave as the date of his dismissal 1st April 1992.

At the hearing, the Appellant was represented by a solicitor and the employers were represented by a person from their trade association.

In paragraph 1 of their decision the Tribunal noted that on the day of the dismissal a disagreement occurred between the appellant and a female employee as to the way they did their work. The female employee, whom we shall call Mrs X, then made serious allegations of "pestering" against the appellant. She was interviewed, and the employers concluded that what she was complaining of amounted to sexual harassment. The appellant was summoned to a disciplinary hearing, which he attended together with his shop steward. He was asked for his version of the events and made a long statement which contained a number of admissions; however he was denied the opportunity of listening to and asking questions of Mrs X or her witnesses. Having concluded their hearing, the management reached a number of factual conclusions about the appellant's conduct towards Mrs X, which are set out in the Tribunal's decision at paragraph 4 and do not need to be repeated here, despite the fact that Mrs X had continually advised him to keep away. He also, according to the management's findings, got annoyed if she spoke to anyone else. They concluded that these attentions were not sought by Mrs X but were rejected by her; and they decided to dismiss the applicant for gross misconduct.

Following the dismissal there was a two stage appeal process. The conclusions of the Industrial Tribunal were:

1. The reason for the dismissal related to the appellant's conduct.
2. Whilst the appellant was not in a position of authority over Mrs X "it seems clear that he was pestering her in a way that a woman was properly entitled to find offensive and unacceptable. It see to us therefore that the [employers] were entitled to consider the [employee's] conduct justified dismissal."
3. The employers did not accept Mrs X's evidence at face value "but made considerable efforts to interview other witnesses, both those mentioned by Mrs X and by the appellant. Their conclusion [that the employee was guilty of the misconduct referred to] was a perfectly tenable interpretation of the evidence."

In breach of the contractual disciplinary procedure the appellant and his representative were themselves, as we have indicated, denied the opportunity of questioning the witnesses making the allegations. The Tribunal addressed this matter in paragraph 8 of their decision. They say:

"The third matter, which has concerned us most in the procedure. The central criticism is that although the applicant had ample opportunity to explain his case and knew in some detail the nature of the allegations made against him as is apparent from the contentions he put forward, he did not have the opportunity personally to be present when witnesses were interviewed or to question them. Although he did have representatives present, although it is clear that they did not cross-examine those witnesses."

We were also told this morning that what happened was that after the complainant and witnesses had spoken to management, management then effectively went through what they were saying with the appellant line by line.

However, it seemed to the Industrial Tribunal that:

"It was reasonable of the employers to decide not to follow their disciplinary procedure in this regard and not to allow the appellant to be present when witnesses were interviewed. We are assisted in this by the fact that his trade union representative knew what was happening and never objected. The [employers] were concerned firstly that having the appellant present would cause a shouting match and secondly, that there would be embarrassment, particularly for Mrs X in having to make these allegations in the presence of the appellant. It may be that another course was open to the employers. It may be that another manager would have decided it was appropriate that the appellant should have the opportunity to question the person who was putting his job at risk, but we have come to the conclusion that although the employers did not follow their disciplinary [procedure] in this regard, that in itself is not sufficient to render the dismissal unfair."

One might have been forgiven for thinking that as the Industrial Tribunal had directed themselves to all the relevant matters, the case would have rested there. Instead, after a series of what one might call false starts, the appellant appealed against the decision attacking that part of the decision where the Industrial Tribunal conclude that a breach of the employers of their own contractual procedure did not render the dismissal unfair.

In able submissions made to us, reliance is placed by Counsel for the appellant upon two decisions. First, Cabaj v Westminster City Council [1994] IRLR 530; and Stoker v Lancashire County Council [1992] IRLR 75. It is the appellant's case that these authorities establish the principle that:

"... what has occurred is not simply a procedural error which could be excused but a fundamental error affecting the whole of the disciplinary procedure. ... it is not a question of judging whether the employer acted reasonably but, having found ... significant procedural failures in breach of the Appellant's contractual rights the only proper conclusion would have been that the appellant was unfairly dismissed."

Without turning to those authorities we would have doubted whether any court could have established such a principle as is contended for. Section 57(3) is not fettered by rules, it is drafted in wide terms.

We start by an analysis of the principle contended for. It is apparent that there may be a procedural error which `could be excused', as opposed to a fundamental error affecting the whole of the disciplinary procedure. It is not clear whether there is said to be a difference in principle between the two. If so, it is not clear what principle distinguishes an excusable error from a fundamental error. The distinction is, presumably, simply between an error, or as we would prefer to say, a failure of procedure which, having regard to the circumstances, may be regarded as excused. If, and in the end we think this is the proper analysis of the submission being made, the procedure adopted by the employer was so fundamentally flawed, whether because there was no procedure at all or because the agreed procedure was not followed such as to render unfair any decision taken under it, then dismissal will be held unfair. But this is no more than a statement as to the application of section 57(3) in every case. The fact that the procedure is or is not contractual is not likely to have a significant effect because an employee's right to fairness cannot be contingent on the adoption of a procedure; he cannot be more likely to succeed if his employer has provided him with a procedure and then not followed it than if there was no agreed procedure at all.

Having looked at the two cases, we can confirm that there is no such principle as is contended for . We start with a citation from the case Bailey v BP Oil (Kent Refinery) Ltd [1980] ICR 642. There the Court of Appeal said this:

"Each case must must depend upon its own facts. In our judgment it is unwise for this court of the Employment Appeal Tribunal to set out guidelines and wrong to make rules and establish presumptions for industrial tribunals to follow or take into account when applying [and then they refer to paragraph 6(8) and the reference is now to Section 57(3)] ... In most cases, if not all, a failure to comply with such an agreement [an agreed procedure] would be a factor to be taken into account; but the weight to be given to it would depend on the circumstances. An industrial tribunal should not base its decision on reasoning to the effect that because there has been a failure to comply, the dismissal must have been unfair."

In Stoker the Council had dismissed a laboratory technician in breach of procedure. He was entitled to a full hearing in each of the committees referred to; yet when the committee which made the decision looked at the matter it limited its function to only half of what it should have been. The Court of Appeal held that the Industrial Tribunal and the Employment Appeal Tribunal had misinterpreted the employers' procedure. Because the Industrial Tribunal and the Employment Appeal Tribunal had misunderstood the procedure, the right question had never been asked by either of them. As the Court observed "It might be the view that a reasonable employer could be expected to comply with the full requirements of the appeal procedure in its own disciplinary code." The case was remitted back for further consideration by the Industrial Tribunal in the light of that judgment. It is to be observed that the Court did not substitute a finding of unfair dismissal as it surely would have done had it espoused the principle contended for in this case. Nor would it have referred to the question whether the reasonable employer could be expected to comply with its own procedure, if every reasonable employer on every occasion would have done so. Not only does this case not support the proposition contended for; it is, in our judgment, inconsistent with it.

As to Cabaj the Employment Appeal Tribunal said that the legal error made by the Industrial Tribunal was in regarding the defect (in the constitution of an appellate body) as a procedural error instead of a significant contractual and jurisdictional failure. Reference was made to Stoker and the Employment Appeal Tribunal said:

"... the Court of Appeal emphasised the importance, with regard to internal appeals, of addressing the fact that an employee has not been accorded the right of appeal to which he was contractually entitled. It is not a question of looking at the reasonableness of the actions of the council."

We are of the view that the President was not there seeking to say that in every case where there is a breach of procedure which is contractual the employee is taken to be unfairly dismissed. The Employment Appeal Tribunal, it is to be noted, was following the Court of Appeal in Stoker. It is not just a question of looking at reasonableness, Industrial Tribunals should be aware of the fact, if it be the case, that by breaking their own procedure the employers may be breaking the employee's contract. The breach of contract, and the jurisdictional failure, as the case might be, are matters to be taken into account when deciding whether an employer could reasonably depart from the a contractually agreed procedure. In Cabaj there was a serious jurisdictional error which the Employment Appeal Tribunal considered rendered the dismissal unfair on the facts of that case. We reject the submission that there is a true distinction in law between `procedure' and `jurisdiction' when the Tribunals' are considering the question which is asked of them under Section 57(3) of the Act.

We for our part, remind ourselves that it is impossible to say that in every case any particular form of procedure has to be followed. There are circumstances familiar to the courts where employers may justifiably wish to depart from their normal or agreed procedure. The list of such cases is not closed but we can imagine some where an employers relies upon the evidence of an informant, either a fellow employee or a member of the public, who gives evidence about dishonesty; there may be cases where a witness is reluctant to give evidence at any hearing because of the nature of the allegations, for example of bullying or sexual harassment. Whereas the courts have screens, and video units and procedures for protecting the identity of informants, it must emphasised that an employer is not conducting a trial; he is carrying out an investigation in the context of the work environment. What a reasonable employer will do in the circumstances envisaged is a decision for the Industrial Tribunal when assessing whether the outcome of such a procedure is fair or unfair.

In our view, every case is dependent upon its own circumstances and facts, which is precisely what the Industrial Tribunal said in this case. They had the benefit of looking at Stoker which was cited to them. They were aware that there was a breach of contractual procedure. Unless there was authority that every employer would have been unfair to have dismissed, where, as here, he has broken a contractual procedure, the Industrial Tribunal were entitled to form their own view of the matter. That said, nothing we have said in this case should be regarded as a precedent because we emphasise we have decided this appeal on the basis of the facts before us. Nor is anything we have said in this judgment to be treated as a weakening of the general trend in the authorities which stress the need for a fair procedure before a person loses his job and possibly, as here, is personally damaged. Employers should not lightly depart from their own agreed procedures. They should only do so where the circumstances reasonably justify it. Sexual harassment cases are difficult and sensitive as duties are owed by the employer to the men and women whom they employ, that is to the complainants and to the victim at the same time. It seems to us that a company of the size here, might consider it advisable to consult with the Equal Opportunities Commission about adapting their procedure in future to deal with any further case of sexual harassment in a way which will be equitable to all concerned.

But for present purposes we have to say that we dismiss this appeal because we are all of the view that there is no real point of law discernable in the appeal which has been attractively presented to us. We are satisfied that there is no mis-direction by the Industrial Tribunal and that they were entitled on the facts of this particular case to arrive at the decision which they did.

Accordingly, not without some misgivings because of our belief that it is important that employees should feel that they have been fairly treated, we nonetheless dismiss this appeal.