United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1076_94_2301

Appeal No. EAT/1076/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23 January 1995

HIS HONOUR JUDGE D M LEVY QC

MRS R CHAPMAN

MR S M SPRINGER MBE

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GARDNER MERCHANT LTD          APPELLANTS

MRS C M SCOTT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR D HUNT

Personnel Adviser


 


JUDGE LEVY QC: Under the new procedure, we have a preliminary hearing ex-parte in the proposed appeal by Gardner Merchant Ltd, ("the Company") against a finding by an Industrial Tribunal that the Company's employee, Mrs Scott, was unfairly dismissed.

The brief facts are that Mrs Scott was employed by the Company which managed a Sports Club for Esso. The management of the Company did not find Mrs Scott an entirely satisfactory employee, although she had been there for some time; there was a disciplinary hearing in December 1993, after a first and final written warning had been given on 20 December 1993.

In February 1994 she was suspended from her work and on 14 February there was a further disciplinary meeting and the findings of the Industrial Tribunal on what happened after are set out in paragraphs 29 and 30 of the Full Reasons. The Industrial Tribunal heard Mrs Scott's complaint at Southampton on 24 August 1994 and its decision was communicated to the parties on 19 September 1994. The essential paragraphs read:

"29. Looking, first of all, at the disciplinary hearing which resulted in dismissal, the applicant said that she felt that the decision had already been made beforehand and that no matter what she said during that very short meeting nothing was going to make any difference. We agree with her. We find that the committee of the club had decided quite clearly that they wanted the applicant dismissed, that they made their views well-known to the respondents, the respondents themselves were afraid that there would not be a renewal of the three-year contract from November 1992 and that was what influenced Miss Durran and Mr Larter on that day".

30. We then looked at the way in which the appeal was dealt with. We noted that Mrs Scott had no objection to the way in which Mr Dyer handled the actual meeting. But what we find unacceptable is that afterwards he then contacted and discussed the matter with Mr Larter and Miss Durran, the two people who were heavily involved in the dismissal. It seems to this Tribunal that in any appeal, it is essential that the person conducting it is somebody who has not been previously connected with the case and who is able to deal with the matter in an independent way. We are aware that sometimes a point arises during an appeal hearing or even a disciplinary hearing where the person conducting it needs to obtain information on some point which is in dispute. It is not claimed that that was the position here. We find that Mr Dyer should have been perfectly capable of making up his own mind on what he saw and heard on 7 March, but he did not do so.

31. We are unanimous in our finding that this dismissal was unfair. The actual dismissal proceedings were procedurally unfair and we do not accept Mr Hunt's contention that the appeal proceedings would have nullified any such unfairness. Having found that the dismissal was unfair we decided that it would not be possible or sensible for us to comply with the applicant's request for an order for reinstatement".

Mr Hunt has appeared before us today, as he appeared below. He submits that the decision of the Industrial Tribunal is perverse, but we are unable to accept his submissions. First of all, the procedures below were, in our view, quite clearly procedurally unfair. It seems to us clear beyond peradventure that what happened when the matter came before Mr Dyer, he behaved in a manner which was proceedurally quite incorrect albeit he did not intend so to act. What he did having heard from Miss Scott, was to take independent evidence from Mr Larter and Mr Durran. He did not give Mrs Scott the opportunity to comment on what he had heard from either of them. The hearing before him was irredeemably flawed. At the close of his address to us, Mr Hunt submitted that once the first hearing had been heard, there was really nothing more for the Company to do. That is, in effect saying the disciplinary hearing was a waste of time. We are sure that is not what

Mr Hunt meant, but that is what he submitted. His submission was quite wrong.

We think this is a clear case where the Tribunal below got it right and it would be quite inappropriate for the appeal to go forward. In these circumstances, we dismiss the appeal.