United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 909_93_2502

Appeal No. EAT/909/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25th February 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY

MR D O GLADWIN CBE JP

MR K M YOUNG CBE

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P K AMADA          APPELLANT

BRITISH RAILWAYS BOARD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR NICHOLAS ISAAC

Free Representation Unit

49-51 Bedford Row

LONDON

WC1R 4LR


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal from a decision of the Industrial Tribunal sitting at London (North) on the 23rd September 1993. For reasons notified to the parties on the 1st October 1993 the Tribunal unanimously decided that Mr Amada's complaint that he had been unfairly dismissed by British Railways Board should fail.

This is a preliminary hearing of the appeal to determine whether there is an arguable point of law. If there is no arguable point of law then the appeal should be dismissed now and not proceed to a full hearing.

The background to the dispute is that Mr Amada was employed by British Rail in cleaning trains. His employment began on 17th May 1989. He was dismissed for misconduct on the 16th September 1992.

The Tribunal in a clear and concise decision stated their findings of fact. The claim was for unfair dismissal. There was, originally, also a claim for racial discrimination, but that was not pursued. The circumstances which gave rise to the claim were that there was an incident on the 14th July 1992 in which it is admitted by Mr Amada that he punched a fellow employee, Mr Crow. The circumstances in which that incident occurred were disputed. Mr Amada's side of the case is set out in detail in his complaint.

As a result of the incident a disciplinary hearing was conducted into the allegation that Mr Amada had punched Mr Crow. The Tribunal found it was a full investigation which took place on the 1st September 1992. It was conducted by a depot engineer, Mr Scarrott. Mr Amada was represented at the hearing. The disciplinary hearing resulted in a decision to dismiss Mr Amada for violent behaviour. Account was taken of the fact that he had been disciplined previously for offences which had occurred in January and March 1990. For the March 1990 incident he had been suspended for a day and given a final warning.

There was an appeal hearing against that, conducted by Mr Chivers, On that occasion a warning was given. Apparently a final warning appeared on his file throughout the period of his employment. It was argued on behalf of Mr Amada that he had been unfairly dismissed. British Rail's case is that they behaved reasonably in all the circumstances.

When the matter came before the Industrial Tribunal on the 23rd September 1993, evidence was given by Mr Scarrott, who had conducted the disciplinary hearing; evidence was given by Mr Chivers, the fleet manager, who had conducted the appeal hearing. No evidence was given by Mr Amada, though it appears he was present at the hearing. The Tribunal came to their decision. They considered oral evidence and documentary evidence. They found as a fact that it was within the band of reasonable responses for British Rail to have dismissed him for the offence of punching Mr Crow. They noted that it was within the disciplinary procedures for Mr Amada to have been dismissed for this behaviour, even though he had not been the subject of a final warning. The Tribunal found that it was reasonable for British Rail not to have dismissed Mr Crow, but to have disciplined him, because he appeared to British Rail to have played a lesser part in the incident. The Tribunal concluded, correctly, that it was not for the Tribunal to substitute its decision for that of an employer making a decision that was reasoned on the spot. The Tribunal stated their final conclusions in the matter in paragraphs 8 and 9 by saying:

"the Tribunal finds as a fact that the Applicant [Mr Amada] was dismissed by reason of his gross misconduct in that the Respondent [British Rail] had reasonable cause to believe that he had punched Mr Crow on 14 July 1992. In dismissing the Applicant the Tribunal finds as a fact that the Respondent behaved reasonably in treating the Applicant's conduct as a reason for dismissing him pursuant to Section 57(3) of the Act."

They noted, finally, that there was no criticism of the disciplinary procedures. Mr Amada had been represented at all stages of the hearing and a proper investigation had been carried out.

The conclusion appears to us to indicate that the Tribunal, in the light of the findings of fact, correctly applied the law as laid down by Arnold LJ in British Home Stores v. Burchell in misconduct cases. It was laid down that there are three elements in the task of the Tribunal. The first is to enquire whether the employer believed the employee to be guilty of misconduct, the second, whether the employer had reasonable grounds to support his belief and, thirdly, whether the employer, in forming his belief on those grounds, carried out as much investigation into the matter as was reasonable in all the circumstances of the case. Arnold LJ said that if the employer discharges the onus of demonstrating those three matters, then it is not for the Industrial Tribunal to examine the matter further.

The Tribunal, although they made no reference to Burchell's case, clearly directed themselves correctly as to the matters that they had to consider in deciding whether or not there had been an unfair dismissal.

Mr Isaac, who appeared on the appeal for Mr Amada, submitted that there were errors of law in the reasoning of the Tribunal. His main complaint was:

"(ii) the Industrial Tribunal failed to consider in any detail the incident on 14th July 1992, the final result of which was the activation of the final warning and the Appellant's [Mr Amada's] dismissal. In particular the tribunal failed to consider or make findings on whether a reasonable manager/employer could have decided, on the evidence which had been collected for the purposes of the Form 1 hearing, that Mr Crow [the man who was punched] had played a lesser part in the incident.

(iii) the Industrial Tribunal failed to consider whether the Appellant was acting as a result of provocation or in self-defence when he punched Mr Crow, and whether this reduced the seriousness of or wholly negated the effect of the Appellant's misconduct."

He also submitted that there was no evidence before the Tribunal to support the finding of fact that the sole reason for Mr Amada's dismissal was the punch he gave Mr Crow.

We have considered these arguments in the Notice of Appeal supplemented by Mr Isaacs' oral submissions, but we are unpersuaded that they disclose any error of law. Another Industrial Tribunal might have taken a different view of the position of the reasonable employer, his state of belief, his grounds for belief and his investigation. But this Tribunal, correctly addressing themselves to those factors, came to clear conclusions that British Rail did believe that there was misconduct on the part of Mr Amada in relation to the punching of Mr Crow; that there were reasonable grounds for that, and that belief, and those reasonable grounds, were supported by a full investigation of which Mr Amada was represented. The Industrial Tribunal were also affected in their final decision of this matter by the fact that Mr Amada had not given any evidence. That may, in the end, have not swayed the Tribunal one way or the other, but it was a factor they were entitled to take into account.

In the circumstances, there is no arguable point of law in the case. The Applicant is dissatisfied with the decision. That is not a sufficient reason for allowing this matter to proceed to a full hearing. At a full hearing these arguments could not possibly succeed in obtaining a reversal of the decision or a remittal of the matter to an industrial tribunal. The appeal will, therefore, be dismissed.