United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 914_94_1301

Appeal No. EAT/914/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13th January 1994

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS R CHAPMAN

MR E HAMMOND OBE

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BRITISH BROADCASTING CORPORATION          APPELLANTS

MISS J E ALLEN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants Mr M Shanks

(Of Counsel)

Janet Youngson

BBC White City

201 Wood Lane

LONDON W12 7TS


 


MR JUSTICE MUMMERY (PRESIDENT): This is the Preliminary Hearing of an Appeal against the Decision of the Industrial Tribunal reached at London (South) after a six day hearing in July last year.

The unanimous decision of the Tribunal was that, for reasons notified to the parties on the 5th August 1994, Miss Allen, the Applicant had been unfairly dismissed by the Respondent, the BBC.

The BBC were dissatisfied with the Decision and appealed by Notice of Appeal dated 15th September. The matter was set down as a Preliminary Hearing so that we could decide whether an arguable point of law was raised by the Notice of Appeal. If no arguable point of law is raised, there is no jurisdiction in this Tribunal to hear the matter and the Appeal will accordingly be dismissed without going to a Full Hearing and putting the Respondent to unnecessary expense.

The background to the dispute is that Miss Allen was employed by the BBC as a senior costume designer. Her employment dated from 1967, when she began as a costume supervisor. She was promoted to be a senior designer in 1974. There were disciplinary proceedings against her in 1991 which had resulted in the issue of a final warning. This case is concerned with events which occurred subsequently and led to further disciplinary proceedings resulting in a dismissal letter, sent to Miss Allen on the 6th May 1992.

She appealed against the decision to dismiss her, which had been taken after a disciplinary interview on the 1st May 1992. The appeal took place in two stages, on the 1st July 1992 and the 18th September 1992. Her appeal was unsuccessful.

She therefore initiated proceedings for Unfair Dismissal by an Originating Application presented to the Industrial Tribunal on the 10th July 1992. The hearing before the Industrial Tribunal was conducted by Miss Allen in person, and Mr Shanks, who represents the BBC at this hearing, also represented them before the Industrial Tribunal.

The Industrial Tribunal set out in their Decision the detailed background to the difficulties that have arisen between the BBC and Miss Allen and dealt in considerable detail with the events which led up to the disciplinary hearing on the 1st May, the Decision taken at that, and the subsequent appeal. It is unnecessary for the purposes of our decision to examine all the facts, set out in the Tribunal's Decision.

They came to two conclusions challenged in the Notice of Appeal. The first conclusion, stated in paragraph 34 of their Decision, was that the Tribunal were not satisfied that the BBC had carried out a sufficiently adequate investigation into the misconduct alleged to have been committed by Miss Allen. This conduct took the form of making unfounded and unsubstantiated allegations. The Tribunal said that there was no proper investigation by Mrs Shardlow who conducted the disciplinary hearing and the opportunity to remedy that at the appeal hearing had not been taken, either at the first or second stage.

The second conclusion was that Miss Allen had not contributed to her dismissal in any way. Mr Shanks submits that both decisions were perverse, that is that no reasonable Tribunal could have come to these conclusions. In his detailed submissions, he concentrated on three relevant findings about the conduct of the hearing, in support of his submissions that the conclusion of the Tribunal that there was an inadequate investigation, was demonstrably wrong and perverse. The findings did not support the conclusion they had reached.

The first passage in the Reasons which he criticised was where the Tribunal had set out the circumstances in which the disciplinary hearing took place. Miss Allen was given notice that there would be a disciplinary hearing on the 28th April. The meeting was to be on the 1st May. She therefore only had three days notice of the hearing. She came before the meeting which was chaired by Mrs Shardlow. She asked for the matter to be adjourned. The adjournment was refused.

The Tribunal said at paragraph 20:

"The Tribunal feel that it would have been more sensible to have granted a 24 hour adjournment, the Applicant had only received three days notice of hearing. Another matter that has concerned the Tribunal is that the Tribunal were concerned that having made the allegations the Applicant found herself immediately in a disciplinary hearing situation rather than being summoned to an investigatory meeting to investigate allegations to see whether or not they were justified. The Respondents argue that under the Staff Instruction (R1 page 247) entitled "Preliminary Investigations" the BBC for its part had at that time ample evidence to bypass any preliminary investigation and to go straight to a disciplinary hearing. We do not agree with them, and again it was unfortunate as the Applicant already felt she was being persecuted and this course of action only added "fuel to the fire."

Mr Shanks submitted that, in that paragraph, the Tribunal had demonstrably asked themselves the wrong question and had substituted their own views as to how the disciplinary interview should have been conducted. He went on to submit that, in saying that the hearing should have been an investigatory meeting to investigate the appeals allegations, rather than the disciplinary hearing, having regard to the BBC's regulations and terms of the warning, this was demonstrably wrong. He submitted that it was not incumbent on the BBC to investigate the behaviour of those against whom Miss Allen made allegations but for her to substantiate her allegations against them.

He also criticised another passage with dealt with the disciplinary hearing in rather different terms. The Tribunal returned to the inadequacy of the investigation in paragraph 36 where they said this:

"The notification of the Disciplinary Hearing was only received by the Applicant on 28 April. The Disciplinary Hearing was 1 May - we believe the Respondents acted in this respect with unseemly haste - it would seem that the Respondents were anxious to conclude the disciplinary process within 12 months from the previous final warning so as to be able to take advantage of that final warning before it was removed from the Applicant's record."

Mr Shanks submitted that this criticism had not been put to any of the witnesses. Having regard to the chronology of events in relation to the date of the final warning, and the date when the letters were sent and the date when the disciplinary hearing took place, the Tribunal's conclusion on this point was a perverse one.

We have noted the points made by Mr Shanks. There are some respects, we agree, in which the language of particular passages of the Decision could have been improved. Thus it would have been, in our view, a preferable way of stating the matter relating to the adjournment, to have said that it would have been more "reasonable" to have granted it rather than more "sensible". A similar point was made by Mr Shanks on the language in paragraph 21 that Miss Allen saw the way she was being dealt with on the appeal as unfair treatment.

Mr Shanks submitted that was a wrong approach by the Tribunal. It was looking to the subjective perceptions of Miss Allen rather than to the objective reasonable test that ought to be applied in relation to deciding whether investigations and procedures were reasonable.

Although these points of criticism on the language have some force, they do not, in our view, have sufficient force to amount to an arguable case of perversity. In deciding whether a Decision is perverse or arguably perverse, it is necessary to look at the whole Decision on the facts and the law and on the conclusions which are reached, and not take an over critical approach to the way in which the Tribunal has expressed particular views on the evidence and the facts.

In our view, there is no reasonable argument that this Decision was perverse. The Tribunal found as a fact that only a short period of notice was given of the disciplinary hearing; that an application for an adjournment was not granted. That the result that there was no adequate investigation and that inadequate investigation was not remedied by subsequent hearings at the appeal stage.

That was not necessarily a conclusion which another Industrial Tribunal would have reached on the evidence, or which this Tribunal would have reached. But it appears to us from the material which is set out in the Decision, there were sufficient findings of fact to support a conclusion that there had been no adequate investigation.

The second ground of appeal can be dealt with more shortly. The criticism is that in paragraph 38, the Tribunal simply stated:

"It is hoped that the parties may be able to reach agreement on remedy. The Tribunal do not find that the Applicant contributed to her dismissal in any way."

It is pointed out that no explanation or reasons are given for that conclusion and therefore it must be perverse. It said it caused a real surprise to the BBC. If you go back into the earlier passages in the Decision, there are findings of fact adverse to Miss Allen which make that conclusion on contribution perverse. We were particularly referred to the passages in the Decision which criticised the way in which Miss Allen and her representative conducted the Appeal hearing, introducing a mass of irrelevant material.

Mr Shanks referred to other criticisms made by the Tribunal of Miss Allen's conduct. He says, in those circumstances, no reasonable Tribunal could have come to the conclusion that she had not contributed to her dismissal in any way.

We do not agree. The question whether someone contributed to their dismissal is a question of fact and degree. It is for the Tribunal to reach such a conclusion and, provided that there is some evidence to support that conclusion, it is legally unassailable on appeal.

In our view, there are sufficient facts stated in the Tribunal to justify the overall conclusion that she had not contributed to her dismissal. We find that there is no reasonably arguable case that that conclusion was perverse.

In those circumstances, there is no reasonable prospect of this appeal succeeding. There is no arguable point of law. We shall therefore dismiss the appeal at this stage.