United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 476_93_2610

Appeal No. EAT/476/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26th October 1994

Judgment delivered 19 May 1995

Before

HIS HONOUR JUDGE J BULL QC

Ms S R CORBY

MR K M HACK JP

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MRS M MADDOCKS          APPELLANT

J LI LEACH & CO          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR D BROOK

(of Counsel)

Messrs Wace Morgan

Solicitors

2 Belmont

Shrewsbury SY1 1TD

For the Respondents NO APPEARANCE ON OR ON BEHALF OF RESPONDENTS


 


HIS HONOUR JUDGE BULL QC This is an appeal by the employee against the decision of an Industrial Tribunal sitting at Shrewsbury on 28th April 1993, when by a majority it was found that her application that she had been unfairly dismissed, failed.

The facts found by the Industrial Tribunal, so far as they are relevant for present purposes, are that the Appellant was employed from May 1989 until 13 November 1992 as a sales co-ordinator at the Shrewsbury depot of the Respondent company. Part of her duties was to send copies of quotations which she had prepared to the Head Office in Etruria. Whilst another sales co-ordinator who worked with her, was on maternity leave, the Appellant sent quotations to the Head Office at Etruria but failed so to do from July 1992. Upon her return from maternity leave in September 1992 the Appellant told that other sales co-ordinator not to send any quotations to Etruria because she had not been sending them, and that by starting again to send quotations the Appellant would get into trouble.

The Appellant went on holiday and returned to work on Monday 9th November 1992 when, since the General Manager was on holiday, Mr Moss, the Managing Director of the Company called her in and sought an explanation of her failure to send quotations to Etruria. Additionally, the Managing Director told the Appellant that she must go into the stores to gain experience which suggestion she flatly refused.

Quite separately another employee, a Miss Taylor, had heard the conversation between the Appellant and the sales co-ordinator who had been away on maternity leave. The Tribunal found that the Appellant approached Miss Taylor and told her that she had known that Miss Taylor had been speaking behind her back. As a result Miss Taylor was to some extent "sent to Coventry" by certain employees. The atmosphere in the firm between 9th and 13th November 1992 was somewhat tense and unhappy. The Tribunal found that as a result of having been "sent to Coventry" by some employees Miss Taylor had spoken to Mr Moss.

A second meeting between Mr Moss and the Appellant took place on 13th November 1992, when again the questions of the failure to send quotations to Head Office in Etruria, and the matter of training, were raised. The Appellant was at no time able to explain why she had failed to send quotations to Head Office, save to say that she must have forgotten to do so. The Appellant was very reluctant to move into the stores in order to obtain further training.

At the conclusion of the interview on 13th November 1992, the Appellant was dismissed, and in answer to her request for written notice of the reasons for her dismissal a letter dated 20th November 1992 was sent, which in its material paragraphs reads as follows:

"It is with regret that your working relationship with the Company and some of your colleagues had deteriorated to the point to which the termination was necessary.

You are aware of two previous discussions concerning extended lunch breaks and the final discussion about your variation from the office procedure and your refusal to participate in store assistant training to assist you in your knowledge of our products and goods. As stated, this training would have assisted you in your duties and understanding.

As a mature person we found your assumptions and resulting actions both disruptive and unacceptable to our good working relationships and atmosphere in our Shrewsbury office."

The Industrial Tribunal found at paragraph 5 that:

"... Because of what Mr Moss had heard about the atmosphere in the Shrewsbury depot and that it had been caused by Mrs Maddocks' attitude, he decided, at the end of this interview, to dismiss her. ..."

The interview was that of 13th November 1992.

The Industrial Tribunal in a careful approach which cannot be criticised set out in paragraph 6 their general approach to cases of this nature. It was asserted on behalf of the Appellant that the evidence given to the Tribunal by Mr Moss, the Managing Director of the Respondent Company, was that the employee was at no time warned that either of the interviews on 9th and 13th November were disciplinary in their nature. That this is the case appears from paragraph 19 in which the views of the minority member are set out in these terms:

"The minority member finds that the dismissal was unfair because no proper grievance procedures were in force at the time of the dismissal. If there had been, it is likely that:-

(1) Mr Moss would have had to inform Mrs Maddocks that the interviews were disciplinary;

(2) Mrs Maddocks' attitude would have been different; ..."

and the subsequent passage -

"... Had he waited ... and warned Mrs Maddocks that the interview was serious, then she would not have been dismissed. ..."

It is submitted to us that the Tribunal failed to have regard to the procedural safeguards set out in the ACAS Code of Practice relating to Disciplinary Practice and Procedures in Employment. It is further submitted that against the finding of fact that the Respondent company employed a total of 50 employees, the Tribunal ought to have gone on to consider whether this employer acted fairly and reasonably by not having a further appeal from that of the Managing Director. In our judgment, the fact that there was no further level to which the Appellant could appeal is, on the facts of this case, not fatal having regard to the size of this firm and the nature of its business. However, where there is no further appeal and a decision to dismiss is taken by a managing director, it is in our view incumbent upon the firm to be even more punctilious in observing questions of procedural fairness.

It seems to us plain on the findings of the Industrial Tribunal that there was a procedural failure by the employer at the interview of 13th November 1992, at the conclusion of which the employee was dismissed, to warn her that the interview was in its nature disciplinary. It is unfortunate that the possible consequences of this procedural failure were not brought to the forefront of the intention of the Industrial Tribunal. An Industrial Tribunal can of course find that a dismissal for misconduct is fair despite the fact that the employer has been guilty of procedural unfairness, provided that it asks itself the question whether the employer himself at the time of the dismissal in the exceptional circumstances of the case could reasonably take the view that proper procedural steps would have been futile and could have been dispensed with, and answers that question in the affirmative. This follows from the well known speech of Lord Bridge of Harwich in Polkey v. Dayton Services Ltd [1987] IRLR 503 at 508, paragraph 28:

"If an employer has failed to take the appropriate procedural steps in any particular case, the one question the Industrial Tribunal is not permitted to ask in applying the test of reasonableness posed by S.57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of S.57(3) this question is simply irrelevant. It is quite a different matter if the Tribunal is able to conclude that the employer himself, at the time of the dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under S.57(3) may be satisfied."

We are driven to the conclusion that the failure to examine whether proper procedural steps would have been futile and could therefore be dispensed with was a misdirection in law. For this reason, despite the obvious care taken by the Industrial Tribunal in this case, we have reached the conclusion that we must allow this appeal and remit it, if it is possible so to arrange, to the same Tribunal.