United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 274_93_1404

Appeal No. EAT/274/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 April 1994

Before

HIS HONOUR JUDGE J HULL QC

MR A F BLACKLAWS OBE

MR P M SMITH

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MR M WOOTLER          APPELLANT

GROUP 4 TOTAL SECURITY LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR M WOOTLER

IN PERSON

For the Respondents MR ADRIAN LYNCH

(OF COUNSEL)

Messrs Simpson Curtis

Solicitors

41 Park Square

Leeds LS1 2ND


 


JUDGE J HULL QC: This is an appeal to us by leave of this Tribunal itself, in which, by chance, I took part: we gave Mr Wootler leave to appeal not so much because a point of law in the usual sense appeared from papers, but because we were unhappy with the fairly short decision of the Tribunal, which did not make it plain to us whether the Tribunal had adequately considered Mr Wootler's case. Mr Wootler, as would be obvious to anybody sitting here, has a little trouble in expressing himself in difficult matters. Like so many people, he is not an advocate. We particularly asked the Chairman whether he would be good enough to furnish us with a copy of his notes in the Industrial Tribunal, which he has done.

To explain our decision I must go into the facts a little. The papers are quite lengthy. There are, I should say, nearly 200 pages of papers put before us. Mr Wootler is a man of about 65, and he started work with the Respondents, Group 4 Security, as a security guard on 9 December 1985. At the material time he had been with them for six years. He is clearly regarded as a reliable man. He had been for 12 years with another employer and there is no doubt that he is, as has been said, a valuable man to have in employment in the security world.

What is alleged to have happened is this. On the night of the 11 and 12 January 1992, that is to say on 12 January at about 3.20 am, a Mr Lurcock, who was an operations manager of the employers, had occasion to visit Mr Wootler's site which was at Colnbrook in Middlesex. According to him, he stopped outside the site, where the gates were locked. He flashed the lights on his car and sounded his horn. There was no response from inside, where Mr Wootler should have been. He, Mr Lurcock, proceeded to climb a fence and seeing no lights on, he shone a torch and, according to him, he saw through the window of the room where Mr Wootler was. Mr Wootler was curled up asleep. Eventually he roused Mr Wootler by tapping his torch on the window. Mr Wootler came to the door and let him in, locked the door and there was then a scene; Mr Wootler swore, said Mr Lurcock, and also threathened him with a bottle, and Mr Lurcock, with the door locked, was concerned for his safety. However, Mr Lurcock then caused a telephone call to be made to headquarters, and Mr Wootler spoke to another manager and calmed down. The scene had been such that Mr Lurcock suspended Mr Wootler there and then in the small hours of 12 January, and himself stayed on duty at the Colnbrook premises until it was light. He reported what had happened and it was treated as a serious matter by the employers; not surprisingly, because if indeed a guard was asleep on duty, that was a serious matter and if when he was roused he reacted in this violent and threatening way to one of the managers, that too was a serious matter.

So it was necessary to enquire into it. There was an enquiry held by Mr Cole, another operations manager, and there were present at that enquiry Mr Prendergast, the senior service manager, and Mr Wootler who was represented by Mr Kumar, a Union representative. Mr Cole had Mr Lurcock's written statement and he had spoken to Mr Lurcock. There was no confrontation between the two men before Mr Cole. There was no question of cross examination. Mr Cole then told Mr Kumar, and Mr Wootler, that he was proposing to turn this into a disciplinary enquiry, with a view to disciplining Mr Wootler, and that is exactly what he did.

A few minutes later the enquiry resumed and having heard that neither Mr Wootler, nor Mr Kumar, wished to add anything to what they had already told him, Mr Cole said that he would propose to dismiss Mr Wootler. That was the decision taken by Mr Cole on that occasion.

Mr Wootler, who has appeared before us today, says that Mr Cole should not have adjudicated because he, Mr Cole, had taken an unfair view of a claim by Mr Wootler for commission for introducing a new client to the company, which claim had eventually been recognised as being just. But that objection was not apparently taken before Mr. Cole. It was not said by Mr Kumar, or Mr Wootler himself, "well really Mr Cole you ought not be trying this, we would like another manager to decide on this matter because you may have some feeling against Mr Wootler".

The next thing that happened was that, having handed in his kit and been dismissed, he exercised his right to appeal, and he appeared before Mr Oldham, an Area Manager on the 30 January 1992. On this occasion Mr Wootler was represented by a different Union representative, a Mr Lymath. Mr Oldham heard the appeal and dismissed it.

Then Mr Wootler made his application to the Industrial Tribunal on the 1 February. He pursued a second appeal, again as he was entitled to, to Mr von Eichstorff, and on this occasion he was represented by a different Union representative again, a Mr Johnson. Mr von Eichstorff heard the appeal and considered what was said to him by Mr Johnson and Mr Wootler and in due course he too dismissed the appeal.

Mr Wootler being dissatisfied persisted in his application to the Industrial Tribunal. That Tribunal heard the matter. First of all it gave short reasons for its decision on the 17 December 1992 and then finally it gave its full reasons on the 23 February 1993. I must refer to that. Before I do that I would set out the law as we understand it. If there is an allegation of misconduct against an employee the employer must decide what to do about it. It is his duty to act fairly. First of all, the employer through his representative must make a sufficient enquiry to discover what the facts are. Secondly, he must consider the facts and reach a fair decision. What enquiries he makes must be for him, but quite obviously if there is a serious allegation against any employee, that employee is entitled to be heard; either in writing or, much better, he should attend in front of the manager, and he must have a fair hearing. That does not mean something like a Court hearing, with cross examination and Counsel and so forth, but it does mean that he must be told fairly what it is that is said against him. He must be told fairly about it in sufficient detail to know what is alleged and he must be given a fair and proper opportunity to answer the charges against him. Then, of course, whoever is holding the enquiry must make up his mind, in a fair and decent manner, concerning what he has heard and seen in the course of his enquiry. That is what is required, honesty and fairness. If the decision is to dismiss the employee, then that must be a reasonable response. It is for the employer to say how he runs his business and how seriously he takes a particular charge and of course it is for the employer to decide what to do about it.

On this occasion, as I say, Mr Wootler was represented before Mr Cole; and on his successive appeals to Mr Oldham and Mr von Eichstorff he was also represented by a Union representative, which is a very great safeguard for anybody. So far as we know none of those Union representatives expressed any dissatisfaction with the way in which the enquiry was conducted. Nor did any of them suggest that this was not a case which could possibly justify dismissal and indeed that seems to an outsider to be right, because if a man who is engaged in security duties is found to be asleep and then abuses and threatens a manager, that would on the face of it justify an employer in taking the view that there had been a serious breach of the contract of employment.

What Mr Wootler had to do, when he applied to the Industrial Tribunal complaining that he had been unfairly dismissed, was to show that his employer had behaved in some way improperly through these various hearings; that there had not been a fair enquiry;

or that the decision was not a rational and sensible decision - that it was one which on the face of it was unfair to him, prejudiced, or that the employer had refused to hear him or had in some other way misconducted himself.

The Industrial Tribunal gave their reasons, I will not read them all. They set out the case which I have mentioned, based on Mr Lurcock's evidence. They set out the history of the matter and they considered expressly a point which occurred to me when I first read these papers. They say that:

"Although the applicant was given very little notice of the initial disciplinary hearing we find that he and his representative both knew before the hearing began of the charges which the Applicant had to meet and that the applicant was given a proper opportunity to state his case. We find that the reason for the Applicant's dismissal was a belief on the part of Mr Cole that at about 3.30 on 12 January 1991, Mr Lurcock found the Applicant asleep while on duty as a security guard and that, on waking, the Applicant had used abusive language and threatening behaviour to Mr Lurcock. We find that was a genuine belief held on reasonable grounds. We are also satisfied that, before the decision to dismiss the Applicant was taken, the Respondent had carried out sufficient investigation. We are further satisfied that, in the circumstances, dismissal was within the band of reasonable responses of a reasonable employer. In the circumstances, including the size and administrative resources of the Respondent and having regard to equity and the substantial merits of the case we are satisfied that the Respondent acted reasonably in treating the reason for the Applicant's dismissal as a sufficient reason for dismissing him".

Now it appeared to us that the only criticism that could be made of that written decision was that it did not set out what the Industrial Tribunal had heard from Mr Wootler and any witnesses called by him and any representative of his. It did clearly accept the evidence given on behalf of the employer. So we asked the Industrial Tribunal, if they would be good enough to furnish us with their note of the evidence, and that has been done. It is a very long and thorough note on the face of it. It is recorded that Mr Wootler attended in person and he had with him Mr Horan, who is Counsel instructed by the Free Representation Unit, who undoubtedly addressed the Tribunal and he called Mr Johnson, the Union Representative.

The employers, of course, gave evidence first, since the burden was on them to show what the reason was for the dismissal: they were represented by Mr Webb and they called evidence from Mr Cole, whom I have mentioned, Mr Prendergast who was present at Mr Cole's enquiry, Mr Lurcock himself and Mr Oldham. They did not call the evidence of Mr von Eichstorff, but of course the question for the Tribunal was whether the decision to dismiss was properly and reasonably taken, and there was no complaint about Mr von Eichstorff's enquiry.

I will not go through these very long notes of evidence. It is recorded that Mr Cole gave evidence, this is at page 36. During the hearing, said Mr Cole, the applicant denied sleeping on duty but he made no comment on the allegation of abusive language or threatening behaviour. Mr Cole was pressed about how he had decided the case. He said that on the morning of the 13 January:

"I spoke to Mr Lurcock and he said basically what was in his statement"

and Mr Cole said very fairly that it was not entirely correct. This was not a matter of course the employer relied on, but he said he checked the following morning and they found that the applicant had not in fact missed making calls to Headquarters, although he had not apparently recorded them in his log. Mr Cole said that before the disciplinary hearing, he had given the applicant a chance to speak, but he and his representative had nothing further to say. He admitted that he had not told him that he was proposing to dismiss him, and Mr Cole said:

"I did not tell the applicant or his representative the details of what Mr Lurcock had told me, I thought that was not necessary".

Mr Cole summed up by saying that he had believed what Mr Lurcock said.

Now this note of evidence sets out the evidence of all these gentlemen, Mr Cole, Mr Prendergast, Mr Lurcock and Mr Oldham; as well of course, as the evidence of Mr Wootler and Mr Johnson, and the submissions of Mr Horan, who made vigorous submissions to the Industrial Tribunal, amongst them that this went outside the bounds of a reasonable response by a reasonable employer. Mr Horan made precisely the submissions which I, at any rate, would expect Counsel, doing his best for his client, to make to the Industrial Tribunal. The Industrial Tribunal was not charged with saying whether they thought Mr Cole was right to believe Mr Lurcock. What they were charged with was deciding whether Mr Cole, and later his colleagues on appeal, had acted fairly in making their enquiry and reaching the decision which they did.

Industrial Tribunals are well used to trying those questions. If they go further and make up their own minds, putting themselves in the place of the employer, whether they would have reached the same conclusions, or whether they would have dismissed the applicant, they are going far outside their duties and acting quite improperly. This Tribunal did not. It appears to us that the Industrial Tribunal, having heard all this evidence and the submissions, addressed their minds to the correct issues and did what is in their province and not ours; they decided what evidence they accepted.

Having heard that evidence they decided whether the response of the employers was a reasonable response. We can find no error of law in the conclusion of the Tribunal. What concerned me, speaking for myself, when we gave leave to appeal here, was that it did not appear that the Tribunal had given consideration to what Mr Wootler alleged was his evidence, but it is apparent that that evidence was given, was carefully noted and was reinforced by vigorous submissions. The Tribunal did not in fact set out Mr Wootler's evidence, and it might have been better (speaking very much after the event) if they had devoted a paragraph or two of their decision to setting out Mr Wootler's evidence and saying what they thought of that. What they did do was to set out the evidence which they had accepted, in summary. That was the evidence on which they acted. They were entitled to do that. There is no indication of any unfairness whatever in the way they conducted their hearing.

The Industrial Tribunal came to the conclusion that they accepted Mr Cole's good faith in reaching the decision on the facts which he did, and they accepted the good faith of the other managers and the reasonableness of the grounds on which those gentlemen had reached their conclusions. They did not have to decide of course whether Mr Lurcock was telling the truth, but they were satisfied having heard him that there were proper grounds for those managers to make up their minds in the way that they did.

Now an appeal to us lies only on a point of law. We are not entitled to retry the case in front of the Industrial Tribunal. We are not entitled to say which facts we would have preferred and a fortiori, we are not entitled to do what even Industrial Tribunals are forbidden to do, to put ourselves in the shoes of the employer and say what view we would have reached about this case. We are here only to try questions of law. At the outset of this appeal Mr Wootler handed to us a copy of an opinion of Counsel which he had obtained, in which Counsel said that the case was in her view quite hopeless. It was not one which could properly be pursued and she indeed declined to appear for Mr Wootler.

Before we looked at that, I warned Mr Wootler, particularly that this was something he was not bound to show us and asked him whether he really did want us to read it, and he said that he did, and so we all read it, and handed it of course to Mr Lynch, so that he could read it. We are of course not obliged to form the same view as Counsel in any way, but in this case certainly we do take the same view. Indeed it is evident from the evidence of Mr Johnson himself, who acted on the last appeal and was (perhaps unwisely) called before the Industrial Tribunal, that he was disposed to a similar view of the merits of the case himself.

However that may be, of course we have read all these papers ourselves. We are quite unable to find any error of law in the Industrial Tribunal's decision and in those circumstances we have no course but to dismiss the appeal.