United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 106_95_0505

Appeal No. EAT/106/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 5 May 1995

Before

HIS HONOUR JUDGE J HULL QC

MR T S BATHO

MRS E HART

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NORMANDIE HOTEL (BOURNEMOUTH) LTD          APPELLANTS

MR B LASSMAN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR A STAFFORD

(Of Counsel)

Messrs Rabin Leacock Lipman

7-10 Chandos Street

London

W1M 9DE


 


JUDGE HULL QC: This is an appeal which is in our list under our Practice Direction to see whether with the assistance of Mr Stafford, Counsel for the Appellants, we can find any arguable point of law on which the appeal can proceed, our jurisdiction being, of course, limited to points of law.

The facts are a little unusual. The Normandie Hotel at Bournemouth ("the employers") is a hotel which observes the strict rules of Jewish Orthodoxy with regard to all matters such as food, the observation of the Sabbath and so on. Mr Lassman himself is an Orthodox Jew, although he apparently is rather less rigorous in his personal observation of the rules than some of his co-religionists. He is, or was, the General Manager of the Normandie Hotel and he is now a man of 47. The hotel opened in 1988 and its rules, as I say, and the method by which it proceeds are entirely in accordance with Jewish law and, indeed, that is supervised by a committee of the Rabbinate or ruling body of the Rabbis who inspect and certify the hotel and insist that since the hotel is to be used by strict Jews, these rules must be observed. There was apparently some laxity in observing them which led to a warning to Mr Lassman and then there came the incident which led to his dismissal. I should say that Mr Lassman, as the General Manager, was well aware of the rules and the importance of observing them.

What happened on the day in question, which was a Sabbath, was that a party of guests arrived at the hotel. Somebody had omitted to turn on the central heating and the dining room, where they hoped to have a meal, was uncomfortably cold. Mr Lassman, most unwisely as it turned out and in breach of strict law, turned on the central heating, thereby making the guests comfortable; but of course his behaviour was a breach of the rules of the Sabbath. He should not have done it, so we are told. In those circumstances, he was seen by a colleague and he was asked whether he had indeed turned on the central heating and he told an untruth and said that he had not, that somebody else, a Mr Witt I think, had done it. That was an untruth and in due course it was discovered to be an untruth.

The matter was considered by the Board. There was no board meeting in the ordinary sense of the word, though as Mr Stafford has reminded us, in law, under the Companies Act, a board can "meet" provided they are all in communication with each other, even if they are not physically present together in one room. For example, they can make use of telephones or television links or matters of that sort. And the decision was reached to dismiss Mr Lassman for misconduct. A note was taken, no doubt, of the fact that he had told an untruth, that he had been previously warned and so forth. So he was dismissed.

The Industrial Tribunal, from whom the appeal is brought to us, sat at Southampton on 30 August 1994, under the chairmanship of Mr Teagle and they enquired into these matters and they gave their decision. Their Extended Reasons, which start at page 13 of the bundle, set out the reasons.

They recorded that the employers had said that written warnings had been issued previously, but Mr Lassman denied that and no documentation was produced. They went through the facts in some detail and they found, in certain respects, concerning warnings at any rate, that the employer's evidence was unsatisfactory.

They then set out the occasion which led to his dismissal and his conduct in turning on the central heating and they say:

"k. An informal board meeting took place by telephone on or about 31 December and 1 January 1994. There was no meeting as such or evidence that all directors were able to discuss the issue as a group. At no time was the applicant able to present his case to the Board. On 3 January 1994 Mr Chontow, accompanied by a fellow director, Mr Moses, met the applicant at the hotel. He was told that he could resign if he chose but failing that he would be dismissed. The applicant chose to resign. It was the respondent's evidence that the applicant was at the earlier meeting and again on 3 January given an opportunity to explain his conduct and that if anything reasonable had been forthcoming the matter would have been referred back to the Board. In the view of the applicant on 3 January 1994, the matter was cut and dried and the decision to end his employment had been taken. We prefer this view [an important finding of fact]. The Tribunal concludes that the decision to dismiss was taken by the board during the telephone conversations and there was never any real prospect of the matter being re-opened on the 3 January".

They say that the reason was most certainly one which fell under Section 57(3). They record that the applicant, Mr Lassman, well understood the importance of Sabbath observance and knew that "a blind eye was no longer going to be turned" to any breaches of it. And they say that:

"6. ....

"An investigation took place but thereafter the Board [the Board of the Respondents, the employers] decided upon termination of employment without giving the applicant any opportunity to explain himself, to present mitigating circumstances and to argue against dismissal. Indeed there was no evidence that the decision was truly collective as opposed to the canvassing of opinions over the telephone in the complete absence of any representation from the applicant. The Tribunal concluded that the procedure leading up to the dismissal was wholly unsatisfactory and to such an extent as to render the dismissal unfair".

And then they go on to find that the applicant had contributed, in a very important way, to his dismissal. There is no need for us to go into that. He was partly to blame, more than half to blame for his dismissal.

The employers now appeal to us and Mr Stafford puts the matter very shortly. He accepts that the question whether the employer has acted fairly or unfairly in treating the grounds of dismissal as a reason for dismissal, whether it is reasonable in all the circumstances to do so, is essentially one of fact for the Tribunal which hears the witnesses and which, with its industrial members, is in a position to form a sound judgment on proper employment practice. He accepts that of course.

But, he says, the Industrial Tribunal show an error of reasoning here. It is true that the Board did not meet in a way which gave Mr Lassman an opportunity to argue against dismissal, but he had been given an opportunity to give an explanation and he had been given an opportunity to state mitigating circumstances. The matter was perfectly plain. He had unfortunately realised his guilt so very much that he told an untruth and sought to wriggle out of it in that way. And with regard to mitigating circumstances, of course he could truthfully say that he was attending in this very inappropriate way, to the comfort of guests and therefore, as he saw it no doubt, the interests of the hotel. And all that was plain.

It could not be said therefore that he had not been given an opportunity to give an explanation and to stress the mitigating circumstances. And therefore, says Mr Stafford, the Tribunal, putting those matters together, were adding two non-factors (so to speak) to one perfectly genuine and supportable view and saying, "Well that is the foundation of our decision"; and in those circumstances, says Mr Stafford, "two of the three props on which their decision rests are knocked away, and it must therefore be said that their decision is not one which can be supported in law. The matter ought to be remitted either to this Tribunal or to a different Tribunal, to consider the matter anew and decide, without those errors, whether indeed the employers proceeded fairly".

It appears to us that Mr Stafford's submission, very well (if we may say so) and very clearly made, is not in truth acceptable. It appears to us that what this Tribunal were saying is this; that in their view and, of course, it is their view which matters, Mr Lassman was entitled to appear before the Board well knowing that the question which was being discussed was the termination of his employment for gross misconduct.

He was entitled there to address each member of the Board, his colleagues and probably his friends too, to give them again his explanation of what had passed, not merely of his misconduct but of his telling an untruth which one would have thought, in these circles, would be a matter of great importance; to stress for them the mitigating circumstances and to say exactly what led him to commit this serious breach of his duties and then, having put those matters, to argue against dismissal.

It is with respect facile to say, "well he had already had these opportunities". He had, of course, told Mr Chontow what the reason for his behaviour was and the mitigating circumstances of it, but that is not the same thing as an opportunity to address the Board. One knows very well, having practised as an advocate, how important it is on many occasions to address your audience all there together, so that one can get the points over to each person who ought to hear them, rather than telling one person who passes it on to the others.

In our view, the Industrial Tribunal were, as a question of fact, fully entitled to take the view that Mr Lassman, as a senior and trusted employee, was entitled to this opportunity; and to say that because he did not get this opportunity in full and because the board proceeded in the way they did, however valid that may be under the Companies Act, it was not fair to Mr Lassman in all the circumstances.

The Tribunal are the only people who can say that. They are the people who saw the witnesses; they are the people who weighed up the circumstances; they are the industrial jury. We can only intervene if we find an error of law. We do not think there was an error of law here, or any error of logic.

The fact that earlier opportunities had been given might or might not be sufficient. That was a matter for the Tribunal. They found that it was not. They found that he did not have a proper opportunity to address his colleagues and that it was unfair in the respects which they indicated. There is no doubt they fully understood the seriousness of the complaints made against Mr Lassman. There is no doubt they took them very seriously indeed, and there is no doubt that they found those were grounds which would justify, if fairness were applied, a dismissal. But they did not find that the Board proceeded in a fair way and they therefore found the dismissal unfair.

In our view, no point of law arises. We have heard what Mr Stafford has said about the views which his clients take of the matter. Those views (if we may respectfully say so) relate to the merits of the cause of the dismissal and it is for the Industrial Tribunal, however meritorious those grounds of dismissal may be, to say whether the matter was handled fairly or unfairly. They were entitled to reach the conclusion which they did and whether it is correct or not is not a matter for us.

The question for us is whether it shows an error of law. We cannot find an error of law and therefore the appeal falls to be dismissed at this stage.